Employment references: The dos and don’ts – Ben Williams Goodman Grant

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  Posted by: The Probe      6th October 2018

The sole purpose of an employment reference is to provide important information to a potential employer. They can then use this as part of their decision making process to select the best candidate for a role in their business.

There is no mandatory legal requirement on a previous employer to provide a reference and as such, they can decide whether or not to provide one. If they do decide to, they have control over how much information they provide.

In recent years, there has been a large shift towards minimal basic “facts only” references being given by employers, most commonly limiting the reference to:

  • Confirmation that the employee was employed in the role in question; and  
  • Details on the period of that employment; and
  • A short disclaimer about the information provided and limitation of relying on the same.

It is possible for other employees in the business to provide references and not just the employer. For example, a practice manager may be willing to provide a detailed reference and, in some instances, is most suited to do so.

However, there should be a policy in place so that employees providing references are clear on what information can be provided, the principle of positive or “fact only” references, as well as guidance on how to deal with a request for an employment reference. This policy must be applied uniformly and consistently in order to avoid potential discrimination claims (i.e. not providing references for junior employees, but providing references for employees who have been employed for more than 10 years).

A reference can include one of or all of the following:

  • The employee’s job title and the period of employment;
  • A summary of the skills, duties and attributes displayed by the employee;
  • Response to specific questions asked by the prospective employer such as the reason for leaving their employment; and
  • Details of the employee’s suitability for the role they applied for – this should be provided based on facts and should at all times avoid negative or unverifiable comments as a reference must be:
  • True
  • Fair;
  • Accurate

Where you are the employer recruiting, you must only seek a reference from the applicant’s current employer with their written permission.

As an employer, you should consider the type of offer you are giving to the successful candidate during the recruitment stage. You can make an offer of employment on the condition that the offer may be withdrawn if you do not obtain one or a number of satisfactory references, prior to the employment commencing. If this is the case, then an offer letter should be clear on this point. The danger of not doing so is an unconditional offer is made and, consequently,  cannot be withdrawn. If that offer is then accepted, you have a binding agreement and a contract of employment is formed. This would then require a dismissal if you didn’t want to employ the candidate if, for instance, you were unable to obtain the references you required, but did not make a condition of the offer.

There are many misconceptions surrounding the question of whether you can give a negative reference. You should either choose not to give a negative reference, or provide one with adequate evidence to support the statements made. You can also choose to avoid subjective comments entirely, which is the most pragmatic approach. Subjective comments to avoid include, for instance, phrases such as, “This employee lacks the experience to carry out the role” or “This job is beyond their professional remit”.

The risk of offering up these kind of submissions is that an employer could be misled and suffer losses as a result of making a decision based wholly or partly on what is stated in a reference. This could mean that they miss out on a good candidate, and the employee may suffer the loss of not getting the job (or having an offer withdrawn), as a result of the statements made. Both scenarios could result in compensation being awarded in a court where a misleading reference is provided. The limitation of this is that the employee would need to show the reference was inaccurate or lacking in facts to be successful.

When corresponding with potential employees, an employer should discuss any discrepancies between what the employee puts in their CV and the information in the reference provided by a previous employer.

If you are ever unsure of the appropriate action to take in the recruitment process – whether it is in relation to a reference or the consideration to make – then it is essential to seek advice from trusted dento-legal solicitors. The employment team at Goodman Grant have the expert knowledge and experience to offer reliable guidance so you can avoid the risk of any issues arising.

 

Ben Williams of Goodman Grant Solicitors – contact bw@goodmangrant.co.uk

 

For more information, visit www.goodmangrant.co.ukor contact your nearest office:

London: 0203 114 3133

Leeds: 0113 834 3705

Liverpool: 0151 707 0090


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