Requesting job references can be a really useful tool to help you decide if a candidate is suitable for the job and most employers make employment contingent on receipt of the same. That said, it seems that a lot of employers are either reluctant to provide employment references at all or, are unsure about what they can and cannot say when they do give one. The question of employment references comes with a number of misconceptions and we try to clear up some of the most common of these below.
Misconception #1 – A previous employer cannot give a bad reference
The law says that a reference must be accurate and fair and must not include any misleading or inaccurate information. You should always avoid giving subjective opinions however, if you are able to substantiate what you are saying with facts, then it is possible to give a ‘bad’ reference. For example, if the applicant claimed to their new employer that they resigned from their current job whereas in reality they were dismissed for gross misconduct, you would be able to say this in your reference as it is an objective fact.
If you do provide a reference which the applicant believes is inaccurate then they may be able to claim damages in court. To do this they must be able to show that the information was misleading or inaccurate and that they have suffered a loss as a result such as withdrawal of a job offer.
A further point to consider is that you may still be open to a claim if you provide an inaccurate good reference. The new employer may claim that they recruited the employee as a result of your reference and, where they turn out to be unsuitable, they suffer a loss as they will have to go through the recruitment process again. It is therefore important to remember that your reference can always be objectively justified, even where it is positive.
Misconception #2 – A previous employer is legally obliged to provide a reference
An employer can usually choose if they want to provide a reference or not. If they do choose to provide a reference, they can decide how much information they want to provide.
Sometimes employers direct all reference queries to their HR department who may then just provide a few basic facts about the job applicant and nothing more. Other employers may allow the applicant’s previous manager or colleagues to provide a more detailed reference. Both approaches are perfectly acceptable however we would recommend that, however you chose to handle reference requests, you have a clear policy in place setting out what information you and your employees can and can’t provide.
Please bear in mind that there are some industries (such as those regulated by the Financial Services Authority) in which an employer is required to give a reference.
Misconception #3 – A new employer can ask whatever they like in a reference request
Employers should ensure that the questions asked are relevant to the role that the applicant has applied for. There are some questions that should never be asked such as questions about an applicant’s age, health or family life. Asking these questions and then turning down the applicant may result in them bringing a claim for discrimination. Bear in mind that applicants are entitled to request a copy of any reference that has been written about them.
A further consideration from a data protection point of view is that you should not process any more information about an applicant as is necessary. Asking for irrelevant information may put you in breach of data protection legislation.
You should always ensure that you obtain the applicant’s permission before requesting a reference.
In summary, as long as you ensure that your reference is objective and honest, and you obtain the consent of the employee involved, you should not go far wrong.
Although it can be time consuming to follow up and give references, it may be worth it in the long run. Requesting references can save you from making costly recruitment mistake and providing a reference is not only helpful to the new employer and former employee, but may also be a smart business move as you never know how that person may be able to help you in the future.
If you would like further information in relation to the law on references or, if you have any specific queries, then please do not hesitate to contact a member of the Employment Law team on 01274 864999.