Guidelines for writing references

1. Confidentiality of references and the Data Protection Act 1998
2. Duty of care
2.1 Supply of a reference
2.2 Departmental organisation
2.3 Contents of the reference
2.4 Marked as confidential
2.5 Oral reference
2.6 Allegations

1.Confidentiality of references and the Data Protection Act 1998

Members of staff should always consider writing open references, which are shown to the individual about whom they are written before they are sent. It reduces the risk of litigation against the writer and the University by the person about whom the reference is written – see section 2, below. Further, under the Data Protection Act 1998 it is no longer possible to guarantee that a reference will remain confidential, even if it is marked as such.

Under the Data Protection Act 1998, the writer of a reference may stipulate that it shall be confidential, and the writer need not show it to the individual about whom it is written. However once the reference is received (by a potential employer for example), the recipient must show it to the individual about whom it is written if it appears to the recipient proper to do so, having balanced the rights of the writer of the reference, any other person mentioned in the reference, and the individual about whom the reference is written. Considerations include any duty of confidentiality to the writer of the reference, any steps taken to obtain the writer’s consent, and whether there has been an express refusal of consent.

There is detailed guidance on this issue on the Information Commissioner's website.

It is likely that the data subject will be able to access their reference in most circumstances.

2. Duty of care

The House of Lords has ruled that the author of a reference owes a duty of care to the person about whom it is written, and may be liable in damages to that person if loss is caused through negligence: in other words if the reference was carelessly given. In principle liability could arise both to the subject of the reference if the reference was carelessly unfavourable, and to the recipient of the reference if the reference was carelessly favourable.

If the reference was given by a member of staff in the course of his or her employment, the University might also be liable. Most actions of this sort against the University or members of the University’s staff would fall within the scope of the University’s insurance policy, although the University might have to pay an excess under the policy.

In order to minimise the risk of legal action, the following steps should be taken:

Supply of a reference

Staff and students should be told to ask permission before giving the name of a member of staff as a referee.

A refusal to supply a reference should be made only with good reason. Where such a refusal is indicated to a potential employer or to another institution, the refusal should be carefully worded so as not to imply that any reference supplied would be negative. Alternatively, it could be explained directly to the subject why a reference will not be provided. This can help to avoid any confusion or potential ill feeling.

Departmental organisation

Copies of references should be kept in a central location, normally in the file of the member of staff or student in the Departmental Office.

Effective steps should be taken to see that all relevant information about a member of staff or student is held in the file and that the file is up-to-date. A student’s file should include all marks and all the paper generated by the Department’s system for monitoring progress.

Contents of the reference

Reference writers should read the subject’s file carefully at the time they are writing the reference and should not rely on their memories.

Checks should be made to ensure that there are no outstanding disciplinary proceedings or investigations against the subject of the reference.

In some cases the reference once generated will be used several times. This is perfectly acceptable but care needs to be taken to make sure that the most up-to-date information is included. All references should be dated.

The reference writer should state clearly the parameters within which the reference is given, for example how long the subject has been known to the referee and the areas in which the referee is qualified to comment.

The reference writer should carefully distinguish between statements of fact (for example the marks obtained in last year’s exam) and statements of opinion (for example predictions of likely degree class). Opinions should only be given on matters within the writer’s professional competence.

Where a reference is given by a person who does not know the subject of the reference personally, for example by the Head of Department about a student because the student’s personal tutor has left the University or is on leave, it will usually be prudent to reveal the source of the information, for example by saying "I do not know X personally, but I have carefully read his file and his former personal tutor said ... ".

Marked as confidential

When sending a reference, all correspondence should be marked as private and confidential and for the attention of the addressee and interviewing panel only.

Oral references

Oral references, for example references given over the telephone, are subject to the same legal rules as written references. If a reference is given orally, a careful note of what was said should be made at the time and kept on the file.

Allegations

Should allegations be made that a reference is negligent or defamatory, the matter should be referred immediately to the University Secretary. Any act that might prejudice a defence to a claim, such as an admission of liability, may invalidate the University’s insurance cover.