TAKING CARE OF BUSINESS; Writing a Reference Has Become a Potential Minefield Now That American-Style "Sue Now, Think Later" Lawsuits Have Taken Hold. Margaret Coles Offers Refuge

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WHAT do you do when a departing employee asks for a reference? Do you write a letter in glowing terms, even if you don't mean it? Do you ask him to draft something himself? Or do you pen a brief missive, simply confirming his job title and the duration of employment? Many employers are taking the last option, according to Ronnie Fox, employment specialist at City law firm Fox Williams. "Particularly in the financial sector, people are becoming more reticent," he says. The reason is a fear of expensive law suits.

"The issue of providing references is becoming an increasing headache for employers," says Fox, who is a member of the Law Society's employment law committee.What should an employer do where the former employee was a poor performer? What if the former employee has brought tribunal or court proceedings against the employer? The best course of action for the employer will differ depending on circumstances, says Fox, who offers these tips:

Be accurate. Employers owe a duty of care, to both the former employee and the prospective employer, to prepare the reference with reasonable skill and care. The employer should make sure the reference is accurate and not misleading. If it is, he could face claims from either the employee or the prospective employer.

Beware of glaring omissions. Although there is no general duty of full and frank disclosure (except in relation to regulatory duties in the financial services sector), it may be misleading to leave out information which a new employer may want to know.

Take care where the employee has brought proceedings against the employer.

An employee who is refused a reference because he or she has brought proceedings for sex discrimination may add to his or her discrimination claim a complaint of victimisation. "Although under current case law this does not apply where the proceedings are for race discrimination, this is likely to change by 19 July 2003, by which date the UK is obliged to implement a European Directive relating to equal treatment, irrespective of racial and ethnic origins," says Fox. …


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