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Policy on Providing References for Students

contact: Wendy Appleby, Registrar, Student and Registry Services

Policy

1. It is UCL policy to provide references, where practicable, in respect of its current or past students. This document provides guidance to members of staff providing references in accordance with this policy.

2. In this context departmental policy should be made clear to students: for example, whether they can assume their tutor/adviser/supervisor will automatically provide a reference if his/her name is given as a referee, or whether he/she should be approached first for permission for his/her name to be given.

3. It is the responsibility of Heads of Departments to ensure that staff in their department who may respond to requests for references in respect of past or present students are aware of and abide by these guidelines.

The legal position

4. The author of a reference owes a ‘duty of care’ to the person about whom it is written, which means the author must use reasonable skill and care in preparing the reference to ensure it is true and accurate, and does not gives an unfair overall impression.

5. An inaccurate reference may give rise to an action for negligence (on the basis the author has negligently failed to fulfil her/his duty of care to the reference subject). That individual would not have to prove ‘actual loss’ of employment but only that he/she has lost a ‘reasonable chance’ of employment and thereby sustained loss.

6. Similarly, any untrue statement that disparages the reputation of the individual could give rise to an action for libel (sometimes referred to as a defamation action). In either a negligence or libel action, the individual may seek to claim against UCL and/or the individual author.

7. Authors should also take care to ensure that a reference does not discriminate against the individual in any way. For example, particular care should be taken when making any comment about performance, attendance or sickness where there is a risk that such comments may be discriminatory on grounds of disability.

8. A duty of care is also owed to the recipient of the reference, who may be entitled to bring an action for negligence against the individual author and/or UCL if the information contained in the reference is inaccurate or misleading, and where it has been relied upon and causes some loss or damage.

9. There will usually be no legal obligation to provide a reference to a student. If a member of staff (including a Head of Department) has any concerns about writing a reference for a current or past student, he/she should contact the Registrar.

Aims of the reference

10. There are two principal aims of a reference:

  • to confirm the accuracy of statements made in an application by the student (which means, of course, ascertaining what those statements are)
  • to give the referee's opinion as to the student's suitability for the post/course in question and her/his potential for the future.

The substance of the reference

11. Members of staff who provide a reference in respect of a present or past student should make clear in what capacity they are providing the reference. If the reference is provided in relation to the student as a student (or former student) of UCL and on behalf of UCL, the reference should be given on UCL headed paper. If the reference is provided in a private, personal or non-UCL capacity, UCL-headed paper should not be used, and the relationship of the referee to the student concerned and the fact that the reference is given in a personal capacity should be made clear.

12. In writing a reference the author should always indicate for how long he/she has known or knew the student and in what capacity, and should ensure that the facts stated about the student are correct. The author should not include any facts of which he/she is unsure; if in doubt, leave it out. If information about a student's programme/history/study profile is needed, this information should be sought from Student and Registry Services (please contact the Registrar's Office in the first instance).

13. In a reference the facts about a student's career and any opinion of her/his ability should be differentiated. If an opinion is offered regarding a student's abilities or potential, the referee must be qualified to give such an opinion and the reasoning for such a view should be made clear. If challenged, the author would need to provide evidence to support her/his view.

  • Fact and opinion should not be confused: "On her performance to date I would be surprised if X did not get a first-class degree" is clearly an opinion;
  • "She will get a first-class degree" suggests that the method of classification for Honours is such that the issue is beyond doubt.
  • Opinions stated should be based on facts known to the referee and referees should not make statements they are not qualified to make: for example, "I consider X to be well suited to the post for which he/she has applied, and am happy to support her/his application" is better than "X will be a success in the post of . . . ".
  • Particular care should be taken where a reference is provided about someone who is not known to the person providing the reference (for example, if the student's tutor or supervisor is absent or has left UCL). Opinions should not be given which are not those of the author of the reference.
  • There may be issues on which an opinion is invited or requested about which the referee has limited knowledge, e.g. the honesty and integrity of the student. In these circumstances it may be necessary to say, for example, "I know nothing which would lead me to question X's honesty”.

14. In the event of being challenged over a reference, the referee must never admit liability as this may invalidate UCL's insurance policy. The matter should be referred to the Registrar.

15. References should be marked "Confidential" to the addressee.

16. A copy of any reference provided on behalf of UCL should be kept on the relevant departmental file.

Liability and Disclaimers

17. A reference should contain the following disclaimer in its final paragraph:

“This reference is strictly confidential and is provided to you only in connection with [NAME] and should only be used for that purpose. The above information is given in confidence and in good faith. No responsibility however, can be accepted for any errors, omissions or inaccuracies in the information or for any loss or damage that may result from reliance being placed upon it.”

As there is no guarantee that a disclaimer will not be successfully challenged in court, due care must be exercised when preparing a reference. UCL has insurance that covers members of staff (and ex-members of staff) who have written references in the course of their employment, if these guidelines have been followed. UCL insurance does not cover references by a member of staff in her/his private capacity. In the event that a member of staff is challenged over the content of a reference, he/she should not be drawn into a discussion of the issue of liability, but should refer the matter immediately to the Registrar.

Confidentiality, disclosure and Data Protection Act matters

18. The Data Protection Act gives individuals the right to see a reference written about them. Those writing references should take this into account.

19. All references are considered to be given in confidence, but UCL or the recipient may be required to disclose a reference under certain circumstances, such as a Data Protection Subject Access Request or a request for disclosure by an Employment Tribunal or a Court dealing with a negligence or defamation case. If UCL does become a defendant in a Tribunal or Court case, the decision about what documents to disclose is a question for UCL's legal advisers and not one for individual referees, who should not therefore volunteer any documents to a litigant or to the litigant’s legal advisers.

Confidential References

References given by UCL employees

20. Confidential references given by UCL, including references written by employees in their formal capacity, are exempted from subject access requests where those references relate to:

  • education, training or employment of the data subject;
  • appointment of the data subject to any office;
  • provision by the data subject of any service.

In order to claim that the exemption applies, UCL must specify that they intend the references they provide to be confidential to both the subject of the reference and the recipient. Further, the exemption will apply only where the reference is for one or more of the purposes above.

21. HE and FE institutions have the absolute discretion to refuse to release confidential references written on their behalf if requested to do so in, or as part of, a subject access request; however, this may be contested in a Court of Law.

References received by UCL

22. Confidential references received by UCL are not exempt from the right of access but consideration must be given to the data privacy rights of the referee. Information contained in, or about, a confidential reference need not be provided in response to a subject access request if the release of this information would identify an individual referee unless:

  • the identity of the referee can be protected by anonymising the information;
  • the referee has given her/his consent, or;
  • it is reasonable in all the circumstances to release the information without consent.

In cases where a confidential reference discloses the identity of an organisation as referee, but not an identifiable individual, disclosure will not breach data privacy rights.

23. When faced with the question of subject access to a reference received in confidence from a referee, UCL must consider what steps to take to try and obtain consent, whether the referee has expressly refused to give their permission for the information to be made available, and whether the disclosure might result in harm to the referee.

24. UCL may not refuse to disclose references received in confidence from third parties without providing reasons.

25. UCL departments requesting and giving references should consider:

  • routinely informing third parties who will be providing references of the UCL policy with regard to disclosure of confidential references;
  • requesting that third parties who will be providing references state unequivocally whether or not they object to the reference being released to the data subject in the event of a subject access request;
  • providing guidance to their staff as to acceptable form and content in references;
  • providing advice as to appropriate avenues of action in circumstances where staff do not feel that an applicant is suited to the job/course.

References internal to UCL

26. There may be circumstances where a confidential reference is written on behalf of a data subject by an individual in one department of UCL, to be used by an individual in the same institution or even the same department. There is no obvious justification for differentiating between confidential references received from external third parties and confidential references received from within UCL as regards any consideration of data subject access.

27. Upon receipt of a subject access request, the UCL Data Protection Officer will apply the same criteria to a reference sent and received internally, as they would to a reference received from an external third party.

Telephone or verbal references

28. Although requests for telephone or oral references are frequently received, such requests should be declined other than in exceptional circumstances, since information given in this way may be misinterpreted in its transmission to the interview panel. If, exceptionally, an oral reference is given, steps should be taken first to verify the identity of the enquirer and notes should be kept of the conversation. Where an oral reference is given on behalf of UCL the person giving the reference should not make any statements he/she would not be willing to make in writing.

Unsolicited references

29. It is generally inadvisable to provide unsolicited references addressed ‘To whom it may concern’. If, exceptionally, such references are provided, they should be limited to factual statements such as dates of the student's registration, programme of study, and, if relevant, date and title of award.

Criminal convictions and disciplinary or other such sanctions

30. Care should be taken not to mention in references spent criminal convictions. Any query on this should be referred to the Registrar.

31. If UCL has taken disciplinary or examination irregularity proceedings against the subject of the reference or if such proceedings are pending, advice should be sought from the Registrar as to how this may be mentioned in the reference, if at all.

April 2014