By Tolley in partnership with Emilie Bennetts at Charles Russell Speechlys LLP

The following Employment Tax guidance note by Tolley in partnership with Emilie Bennetts at Charles Russell Speechlys LLP provides comprehensive and up to date tax information covering:

  • References
  • Duty not to discriminate
  • Duty to be fair, truthful and accurate
  • Brief, factual references
  • Inaccurate or negligent references

Note: the case references in this guidance note are all subscription sensitive.

There is generally no contractual duty on an employer to provide a reference (in the absence of an express agreement to do so in a contract). However, if an employer does provide a reference for an employee or former employee, it should be fair, truthful and accurate.

Duty not to discriminate

There is an important exception to the freedom of an employer to refuse to provide a reference. A worker can bring an employment tribunal claim under the Equality Act 2010 for a discriminatory refusal to provide a reference if the reason for the refusal is where an employer refuses to provide one on the grounds of the worker’s protected characteristic.

The protected characteristics are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, gender and sexual orientation.

A worker can also bring a victimisation claim where an employer refuses to provide a reference because the worker has previously made a complaint of discrimination or carried out another protected act under the Equality Act 2010.

It is therefore important for an employer’s policy on references to be consistently applied in order to avoid allegations of discrimination or victimisation.

If the employer refuses to provide a reference on one of these grounds, or writes a discriminatory reference whilst the worker remains employed, the claim is for detriment in employment. It is also possible to bring a discrimination claim relating to a reference after th

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