What can a reference say about disciplinary issues?

Employees sometimes decide to resign during a disciplinary investigation. It is important to consider the potential effect on any reference. Where a person resigns during a disciplinary investigation, an employer can still refer in the reference to the fact that an investigation was started, as long as the reference also makes clear the stage that was reached, for example, by stating that the employee left before any findings could be made, or before the disciplinary hearing took place. Alternatively, the employer could decide to refuse all reference requests.

A reference should not include information about complaints that were known about by the employer but not drawn to the employee’s attention before they left their job (TSB v Harris [2000] IRLR 157). However, where concerns do not surface until after someone has left, the ex-employer can legitimately refer to those concerns in a reference, as long as the reference makes it clear that they were not investigated. There is no duty to follow up concerns with the ex-employee before referring to them in the reference (Jackson v Liverpool City Council [2011] EWCA Civ 1068).