eSignature Legitimateness for Employee Reference Request in Mexico

How to eSign a document: eSignature legitimateness for Employee Reference Request in Mexico

hi this is a video for employers i want to talk about giving references should you give a reference is a dates only reference safest employees can sue for negligent or incorrect references and although these sorts of claims are rare they can be tricky to handle i'm going to cover three things first do you ever need to give a reference or can you just refuse second what are the common pitfalls when giving a reference and third what are the six things for you to remember when giving a reference first of all do you need to give a reference well given there's no general obligation to provide a reference the first question to consider when you receive a request is should you even bother i personally think that if someone's been working for you for a while it's pretty rubbish not to give a reference other employers expect it and they'll suspect you're refusing because the employee left under some sort of clout so it's not very nice to refuse but legally there's no obligation at all to provide a reference other than in four situations number one if you're under a regulatory obligation now this can happen in the financial services sector where there are sometimes legal obligations to provide a reference number two if there's a contractual obligation this doesn't often appear in an employment contract but it's very very common if there's been some form of settlement agreement number three is there an implied obligation perhaps through custom and practice that would be challenging for an employee to argue but it's not impossible fourth if your reason for not giving a reference can be linked with a protected characteristic or because the employee has alleged discrimination and you're not giving that reference as a result or perhaps because the employer's alleged whistleblowing and you're not giving a reference as a result the employee might have a free standing discrimination or victimization claim what are the common pitfalls when giving a reference first has the employee consented to you giving a reference the information you'd be processing would be covered by data protection laws and it's usually difficult to establish any of the lawful grounds processing other than consent so make sure the employees consent in this can usually be inferred from the fact they've asked you to be a referee but problems can arise if you're planning to give a bad reference which they didn't know about because they can then argue their consent isn't sufficiently informed or granular to be valid the second pitfall is getting reference is wrong now references have to be fair and accurate that's a case called spring and guardian assurance the links in the notes below and it mustn't be misleading in what it contains or indeed misleading what it doesn't contain it doesn't have to be very detailed doesn't have to be very comprehensive there's nothing to say you have to answer the 22 detailed questions posed by the new employer so when providing a reference just step back and ask whether or not the reference paints a broadly accurate reasonable picture one that doesn't make the employee out to be better than they are or one that doesn't make the employee out to be significantly worse than they are there are six things for you to remember when giving a reference six rules number one remember you are a duty to both your ex-employee and to their future employer so you can be criticized both for saying too much and for saying too little if what you say or omit paints a false picture two an employer shouldn't refer to an employee's misconduct unless it has reasonable grounds after a reasonable investigation for believing the misconduct's taken place three if you decide to mention uninvestigated allegations made against the employee you must spell out the facts that those allegations haven't been looked into failing to make the position clear could be a breach of your duty of care to the employee four it's unwise to refer to things that the employers are unaware of for example a customer complaint you haven't told them about ask yourself if the employee would be taken by surprise in a bad way by anything you've written in the reference if they would best not to include it or at least to qualify what you're saying for example the employee hasn't been told about this and hasn't had the opportunity to provide an explanation for it five beware of giving too much information about sickness absence you could be risking a disability discrimination claim and you'd almost certainly be breaching data protection unless you have the employers express consent to disclose that information because that information is sensitive personal data so get express consent and six be aware that anything you say could come back and haunt you if they're bringing a claim so if someone who dismissed for poor performance brings an unfair dismissal claim don't give a reference saying they're a good performer before i finish i want to mention the dates only reference some organizations nowadays only give references containing the job title and the dates of employment largely because of excessive and i think usually unjustified caution about a manager saying something foolish but those references still carry the danger that the new employer will make an unfair judgment about the employee based on the approach you've taken i think doing this is unnecessary defensive and unfair to good employees but it is completely legal unless there's a regulatory or contractual obligation to give a full reference as i talked about a few minutes ago and many employers do precisely that they just take this easy and i think slightly cowardly way out of providing a proper reference i hope you found this video useful there are links in the notes below to the cases i've mentioned along with a link to the acas guide on providing references please subscribe to this channel if you find it useful you can find many more explainer videos on employment law here or you can look at my free my free course on deconstructing 2p here thank you for watching i'm barrister daniel barnett bye [Music] you