These questions are being answered by Learn HR, a market leader in the provision of HR and payroll training and nationally-recognised professional qualifications.
Q: We usually provide references on ex-employees. However one man who recently left us, although a good worker, twice took us to an Employment Tribunal claiming [***] discrimination, but each time he lost. Are we within our rights to refuse to give a reference?
A: Some sectors of employment, for example finance and child care, do demand references but, if you are within one of these sectors, you will certainly know about it. Otherwise there is no legal obligation on you to provide references, therefore you are usually within your right to refuse and are not obliged to explain your refusal.
However this man is an exception. You clearly prefer not to give a reference because he took you to Tribunal for [***] discrimination. Whether he won or lost is immaterial. He had the statutory right to make his claim therefore you must not victimise him for doing so. If for this reason you refuse to provide him with a reference he will almost certainly win a claim of [***] discrimination against you.
You therefore need to give a complete and balanced reference. Comment honestly and fully on the man’s work, timekeeping, relationships with other people and so on. Make sure that you check any facts you include and clearly identify opinion as such. And avoid humorous or caustic comments. You are perfectly entitled to state that he made two claims against you for [***] discrimination and was unsuccessful on each occasion, but do not describe him as a troublemaker.