Mike Emmott, CIPD Employee Relations Adviser, @emmott_m
Where can employers turn when they want to check out the credentials of a job applicant? The obvious place to go is the applicant’s previous employer (or employers). Who else is going to have half as much experience of their actual performance in a work context?
And yet….employers lose heart when asked to give a reference on a current or former employee. In recent years many have confined references to a brief statement saying when the individual started and stopped working for them. This has understandably led some employers to suggest that the whole system is a bureaucratic nightmare and should be scrapped.
Many employers fear they may be at risk of being sued if they offer a negative comment in a reference that turns out to be misleading or incorrect. Employers have a duty of care when providing a reference to provide one which is true, accurate and fair. It must not present evidence rather than facts so as to give a misleading impression overall, including by failing to mention a significant fact. Now that under data protection law applicants can ask to see the reference, it’s understandable that employers may feel nervous.
It’s doubtful if the present position is sustainable in the longer term. Employers are not happy, whether being asked to put themselves on the line by offering a full and frank reference, or being unable to extract any valuable information from the system. A former employer may be vulnerable to a claim in negligence from a subsequent employer if there is a serious issue of gross misconduct which the former has omitted to mention. And employees with a positive work record may lose out if their employer feels inhibited from spelling this out.
Although it may not always be obvious, within the overall framework on employers to exercise a “duty of care”, the courts seem to have tried to offer them a lifeline. Although there is no statutory duty on employers (outside the finance sector) to provide a reference, the House of Lords has said that employers have 'at least a moral obligation' to do so (Spring v Guardian Assurance plc  IRLR 460). The Court of Appeal has also stated that:
So there is some judicial encouragement and support for employers who are prepared to exercise their best judgment, and supply references which they believe to be overall fair and accurate. It might however give employers more confidence if the courts – or if necessary Parliament - were to declare that an employer, acting in good faith and having given the matter due consideration, would not be liable to be found to have acted negligently in supplying a reference.
In the absence of such benign intervention by the courts or Parliament, what should HR professionals do? One is to ask themselves if they are paid to be entirely risk-averse. It is sensible to avoid taking unnecessary or disproportionate risk but impossible to avoid risk entirely. We don’t know how many employers have been “punished” by the courts for supplying misleading references but employers can take some basic steps to protect themselves by showing they have taken trouble to be fair overall. Part of the employer’s duty of care is to ensure the accuracy of the factual basis for any expression of opinion regarding an individual.
It can’t be claimed that the courts and tribunals have been perverse in considering cases about employer references. Case law suggests rather that they do in the main understand the problems employers can have getting the balance right. We shouldn’t take refuge in saying the problem with references is all down to the courts.
The underlying concerns here are about possible breaches of the law on discrimination and data protection. These areas of law are based heavily on Parliament’s concern to encourage ethical behaviour. In sectors where there is public accountability for protecting children or vulnerable adults (e.g. schools), employer practice with respect to references appears to be more rigorous. Why shouldn’t employers in other sectors also recognise an obligation towards their fellow- employers, by drawing attention to negative behaviour by individuals? It feels like the familiar problem of managers being reluctant to engage in “difficult conversations”, writ large. References could even be a vehicle for helping employers address individuals’ learning and development needs as they move on: why not?
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