Do you need to request references?

Generally there is no obligation on an employer to request a reference for a potential employee. There are exemptions to this including in relation to the financial services sector where there are regulatory requirements regarding certain types of employees.

Is it important to request references?

References verify work experience and often form an important part of the recruitment process. These days references tend to be fairly sparse on information including only start date, end date and job title. Employers owe a duty of care to an employee to whom they write a reference about and they need to take reasonable care in the preparation of a reference otherwise they can be liable for negligence. There is no duty to give a comprehensive reference about an employee’s employment. This has led to the practice of providing minimal information as a standard practice.

However, the importance of checking references was recently highlighted in an Employment tribunal case where it was found that a pilot had successfully gained a post on a commercial freight airline after giving a false reference. This false reference related to previous experience where the employee had alleged that he had worked as a Captain rather than as a First Officer.

The employee had set up a false email account from a Desilijic Tiure which it turns out is actually the alternative name of Jabba the Hut, a character from Star Wars. The pilot had obtained the job by deception and was dismissed without notice for gross misconduct. The Tribunal found that they were entitled to dismiss without notice for gross misconduct. This case (although not binding on other decisions) reinforces that references are an important tool to ascertain the suitability and in some cases credibility of candidates.

Watch out!

If an employee is refused a reference or given a bad reference due to bringing a complaint of discrimination or some other protected act they can bring a complaint of victimisation. If an employee is also given a poor reference or refused a reference because they had made a protected disclosure claim, they could also be able to bring a claim on the basis that they had been subjected to a detriment on the ground that they had made a protected disclosure.

References should not be discriminatory and employers should have a standard practice to avoid claims as a result of giving references.

Should you make “satisfactory” references conditional on the job offer?

If you decide that references are an important part of your recruitment process then you need to consider whether you make an offer of employment conditional upon receipt of a satisfactory reference. It should be made clear that this is satisfactory to the new employer. If it is then the offer can be withdrawn if the employer subsequently receives an unsatisfactory reference. If not, the employer can still terminate the contract but notice will need to be given. Care should be taken to ensure any decision is not based on a ground that could lead to a discrimination case and exposure to loss of earnings and injury to feelings or any other claim!

How do you decide if a reference is satisfactory?

Generally (as long as this is not discriminatory etc as referred to above), it will be up to the new employer to decide if a reference is satisfactory. If you are unsure then I would suggest you seek legal advice at the time.

What questions should you ask in a reference?

ACAS has recently (4 September 2018) issued some guidance on references to help employers on this topic. The guidance also covers the rules around giving references so is worth a read.

For more details see http://www.acas.org.uk/index.aspx?articleid=6584

So should you use references in the recruitment process?

Certainly if a job is being given based on previous experience then the checking of references should be an important part of the recruitment process and enquiries made to ensure the referee is real. In the case referred to above regarding the pilot, the Tribunal highlighted that if there had been an incident the consequences for the airline could have been “catastrophic”. An enquiry would have revealed that the pilot was “inadequately trained for the position in which he flew”.

References give future employers the chance to check what the employee is saying is true even if it just to confirm where they worked and that they are the right person for the job. It is still common practice to request references for new recruits and this is usually part of a deal when a settlement agreement is also reached. If you give fuller references, you may want to consider accompanying them with a disclaimer to help reduce liability although most statutory liabilities cannot be restricted.