• Providing references: make it fair and accurate

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  • 8 Aug 2017
  • Comments 3 comments

Are employers too cautious in their provision of references because of a perceived threat of legal action? Donald MacKinnon reports

Recruitment is tricky. You can go through all manner of testing and interviews, but how can employers really be sure that the person in front of them is the right fit for the organisation? The candidate will, no doubt, have given a glowing account of their magnificent interpersonal skills and reliability. The reality, of course, may be that they fell out with every co-worker they ever worked with, when they bothered to turn up to work at all.

Often the best source of information will be the applicant's previous employers. Does the applicant's assessment of their skills match the reality as viewed by those they previously worked with? As many, and probably most, recruiters will tell you, it is difficult to get employers to provide references containing anything other than basic information on job title, salary and dates of employment.

There is a general fear among employers that to provide a reference with any hint of criticism included leaves them open to a potential legal challenge. It is an approach that does employers few favours. References increasingly are viewed as a box to be ticked rather than an aid to the recruitment decision (ie do the dates of employment tie up? Is the salary stated correct?)

It is also arguably an overreaction to an overrated concern. On the one hand, save in relation to certain industries (such as the financial sector), employers are under no legal obligation to provide a reference at all. However, where one is provided, the obligation on an employer is simply to provide a reference that is accurate and fair. If an employee has a poor attendance record, this can be stated. If an employer would choose not to re-employ or had performance concerns, provided there is a reason for this, this can also be stated. Provided the employer follows a few basic rules, the employee will have no cause for complaint, even where the reference is not to their liking.

First, and perhaps most obviously, employers need to ensure that the information given is indeed accurate and fair. Don't mix up the employee with someone else, which is a possibility in large organisations. If something less than glowing is being stated, make sure that if challenged this can be justified, whether through performance notes, disciplinary records or other evidence.

Second, be consistent in how you treat employees. If your policy is only to give out factual references, don’t then in some cases provide additional information. It is a very good idea to have a policy on the provision of references, making it clear who in the business is authorised to issue them. Generally, only senior management should be authorised and they should be aware of what the policy is and in controversial cases run any reference past HR or other advisers.

Lastly, take care that any reference could not be seen as victimising an employee who has raised allegations of unlawful discrimination or whistleblowing. The Equality Act 2010 covers post-employment actions. If a poor reference is issued as a response to an employee having raised, or otherwise supported, discrimination or whistleblowing complaints (even unfounded ones), this may in itself give grounds for a claim.

The above do not place an overly burdensome obligation on employers. But remember that employees have a right, under data protection legislation, to receive a copy of any reference issued by an employer. Verbal references get around that problem, but notes taken of those discussions will also be disclosable.

Ultimately though, a bit less caution around the provision of references would ultimately benefit everyone.

Donald MacKinnon is director of legal services at Law At Work

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Comments (3)
  • Really, it is about time we all started to think of alternative ways of confirming interview perceptions. Can you really rely on a reference from someone you don't know, have not had in front of you and could be your candidate's Uncle Bob for all you know?

    Some organisations have schemes that encourage current employees to refer potential canditates to the firm....also causing this potential problem to occur (nepotism, cronyism etc). If you really cannot distinguish a good candidate who seems to be a fit with your organisation from your interview process then there's no helping you. Better to pick randomly from a pile of names in that case.

  • Thank you for this informative and thought provoking piece, however I do agree and see potential issues unless a consistent approach is adopted as you have stated. Potentially it could create time issues locating more detailed information than the basic supplied now especially for large organisations that respond to requests centrality

  • The move towards providing a simple factual reference stating dates of employment is generally much fairer on employers and employees. The old days of writing character summaries is fraught with danger as they are far too easily abused. Reflecting on my own career there are times when I was very unhappy in a job and my performance followed my psychological state. The reason I didn't work hard/well was because I disliked the job. I believe the primary purpose of references is to establish that the person is who they say they are and have done what they claim to have done. Rather than 'marking people's cards' organisations should ensure they have robust induction , management and support procedures to have an early warning of any potential mismatches between employer and employee.