smallbusiness.co.uk: Helping your business think big

An employer is not legally under an obligation to provide a departing employee with a reference unless there is a contractual requirement to do so and the answer to this should be evident from reading the employment contract. However, it is advisable to give some basic information to enable an employee to get another job (especially if you want them to leave!) Details of their length of service, job title and salary is at least the basic information that would be expected.

This type of reference has become known as tombstone advice for obvious reasons. However, the whole purpose of a reference is to assist the employee in securing new employment. Here starts the dilemma. If you disclose information which is unhelpful to the original purpose and in fact may put off a future employer, the employee may sue you for damages arguing that your disclosure was in some way either protected by Data Protection legislation or ‘untrue’ or ‘malicious’.

So remember, if you do disclose information which may prevent an employee from gaining future employment, it is dangerous to do so and unless it is necessary in the circumstances it is advisable to keep the information to yourself. For example, if an employee was dismissed for stealing money from the till, is it really relevant to the road-sweeping job they are applying for?

The chances of a ‘difficult’ employee suing your company are quite high I would have thought and unless you can show that this ‘difficult’ personality polarised your business or caused you to dismiss them for misconduct AND that this is relevant to the reference in question, then it is advisable to remain quiet on the subject and provide the basic tombstone advice, while waving a fond farewell from the safety of your office window!

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