Background

Employees are most company's greatest assets and so employing the right ones is crucial. Employers who are recruiting have a vested interest in obtaining full and accurate references, however, in these litigious days ex-employers are increasingly guarded with the references they give.

Employers often have a policy that limits references to dates of employment and job position. Only last year, South Tyneside Council paid the price for giving a detailed, 'extremely negative' and unfair reference to a social worker. The social worker had a new job offer withdrawn based on the reference given by the Council. It was found that the reference given was unfair and South Tyneside Council was left with a bill of £36,000 after an out of court settlement.

Conversely, with high redundancy rates, some employers feel a sense of responsibility to assist employees in their search for new employment. In certain circumstances, giving a more detailed reference is what some employers feel obliged to do. In doing so, employers should take note of the advice given in this Matters.

Employees should be aware that employers frequently use social networking sites to seek out information on candidates for a job. Employees may list a number of suitable and 'safe' references on their CV but there is nothing to stop an employer digging around on Facebook or other social networking sites to find out more information. Although employees may have recourse if an unfair reference is given (as set out below), they have no remedy against a potential employer not offering a job based on information gained on Facebook. 

Top tips when seeking references:

Some key information to be obtained from a reference includes: 

  • Pensions held
  • Length of service
  • Previous pay
  • Information on suitability/competence - however, take care when using this information. Do not be swayed totally by sxomeone else's judgement. Significant weight should also be given to impressions given at interviews.
  • Honesty
  • Time-keeping
  • Reasons for leaving
  • Disciplinary record
  • Absence record
  • Any other relevant personal matters (for example, prolonged absence)

Additional factors to consider when seeking a reference

Contact with the applicant's current employer should not be made without the applicant's permission. Employers would be well advised to include a job description with the request for a reference together with structured, relevant questions that will enable them to gain further accurate information about the candidate. Simple references dealing with dates of employment, job title and skill set may be adequate.

Job offers that are 'subject to satisfactory references', although common, can cause difficulties. Sometimes references are not supplied or poor references can be unfairly given In these circumstances if the job offer is then withdrawn the applicant may take legal action.

Probationary periods can be a sensible way to deal with delayed/inadequate or non-supply of references. If a conditional offer is the route chosen, ensure that it is made conditional at the correct time. For example, if the offer is made at the end of an interview, employers should state it is conditional at that time and back it up with the offer letter.

Top tips when providing references

An employer is not obliged to give a reference (save in limited circumstances). Although, considering the significant impact on the ex-employee it is quite rare for an employer to refuse. There are essentially two ways to deal with a reference request, firstly, give brief details providing dates of employment and position, or, secondly, give a detailed reference with a disclaimer.

If the first strategy is adopted it is less contentious to also state that it is the company's policy to provide standard references with only those details included. If the second strategy is adopted it is sensible to include a disclaimer of liability in respect of any negligent misstatement.

An example of a disclaimer would be:

"The above information is given in confidence and good faith and is believed to be accurate. No responsibility can be accepted by [the employer] or any of its officers or employees for any errors, omissions or inaccuracies in the information or for any loss or damage that may result from reliance being placed upon it."

It is important that employers take care when speculating with regard to suitability, especially if the new job is different to the previous job. Employers should avoid giving subjective comments. The contents of the reference should be consistent with any reason for a dismissal.

If an ex-employer provides a glowing reference it may not sit neatly with a conduct-based unfair dismissal claim in an employment tribunal. In the case of Castledine v Rothwell Engineering Limited [1973] a good reference undermined an unfair dismissal case dealing with incompetence. In addition, to help avoid claims of discrimination, ensure consistency as far as possible when providing references. 

Data Protection

Employers should ensure compliance with the Data Protection Act (DPA) with regard to personal data and sensitive personal data (seek employee's consent).

The Information Commissioner Website provides detailed and useful guidance on this area. For more information, follow this link:

The Employment Practices Code recommends that companies draw up and publicise a clear policy regarding which employees can provide corporate references, and that confidential references about a worker are not provided unless the company is sure that the worker consents to this course of action. Employers should be aware that health records of the employee constitute sensitive personal data under the DPA and should not be disclosed without consent. However, simply providing absence records should not fall foul of the Act.

Liability

The subject of the reference could have the following claims:

  • Defamation – an untrue statement that disparages the reputation of a person in the estimation of right thinking members of society may amount to defamation.
  • Discrimination - a referee must not provide a reference that is discriminatory on the grounds of sex, race, gender reassignment, disability, sexual orientation, religion or belief, or age. The referee must also avoid victimising an ex-employee for a complaint they may have brought.
  • Malicious falsehood – the subject of a reference may also have a claim for malicious falsehood if they can show untrue words have been included in a reference maliciously.
  • Negligence – an employer can be sued for negligent statements.
  • Contractual claim – an employee may be able to claim there was an implied term in their contract of employment that the employer would take reasonable care when providing a reference. 

The future employer could have the following claims:

  • Negligence – the ex-employer owes a common law duty of care when providing the reference.
  • Tort of deceit – if the ex-employer deliberately deceives the future employer.

It is also worth noting that general duties are owed to the employee and future employer to ensure the information it contains is true, accurate and fair.

Policies

It is advisable for employers to have clear policies as to who can provide references, in what circumstances, and who to. Guidance should be given as to what should be included in the reference. Ensure it is clear that the policy applies to oral and written references.

Checklist

  • Mark references 'strictly private and confidential for addressee only'.
  • Take care when commenting on suitability.
  • A balanced view of the employee should be given.
  • Comply with any company policy.
  • If a brief reference is supplied, explain that it is company policy to provide such a reference.
  • If a lengthy reference is supplied and disclaimer used, ensure disclaimer is reasonable.
  • Ensure reference consistent with reason for dismissal.
  • Ensure no inaccurate statements are included in the reference.
  • Avoid discrimination, for example any comments about performance that do not relate to a disability.