Guidance on employment references

By September 6, 2018Advice, Recruitment

An employment reference helps a potential employer decide whether a job applicant is suitable for the role and organisation.

 

Many job applications require candidates to provide references, but there’s generally no obligation for a previous employer to provide one. Exceptions include certain positions in Financial Services, and where giving a reference has been agreed, such as under a Settlement Agreement.

 

Employers who do decide to give a reference must make them fair and accurate, and those asking for references must handle them fairly and consistently.

 

Here is some advice on employment references, in line with new guidance from Acas.

 

What should an employment reference include?

References can include basic facts about the job applicant, such as employment dates and job descriptions. They can also include details such as the applicant’s character, suitability for a role, and their strengths and weaknesses.

 

A reference can confirm information that is not normally given as a basic fact, such as absence levels and the reason for leaving a previous role.

 

Personal references can be provided by individuals who know the applicant, such as a teacher, sports coach or volunteer leader. Friends and family are usually not suitable.

 

A reference must be a true, accurate and fair representation of the applicant. They should not include personal information, and opinions should be based on facts.

 

Does an employment reference have to be provided?

As noted, a previous employer usually has the choice whether they want to provide a reference or not. If they do decide to provide one, they can decide how much information they want to include.

 

The previous employer may choose to only provide basic facts about the applicant, or ask ex-managers and colleagues for a more detailed reference. Employers should have a policy in place for handling reference requests so employees know what information can be provided.

 

Employers shouldn’t feel obliged to answer reference requests that come in a ‘checklist’ or form that might include questions that they wouldn’t want to answer. Provided that an employer is consistent, declining to respond to the checklist but offering a standard reference (or not providing any reference) as you would with any other candidate would be an alternative.

 

References can be required at any stage of the recruitment process. Prospective employers can only obtain references from a candidate’s current employer with their permission.

 

Only certain industries require a reference to be given by law, such as those regulated by the Financial Services Authority.

 

Can an employer give a ‘bad’ reference?

References must not include misleading or inaccurate information, so any comments must be supported by facts. This can lead to some references showing that the job applicant is not suitable for a role.

 

It may be suggested that the applicant doesn’t have enough experience, or has left their previous role for a different reason to the one given. Prospective employers should remember that references are optional and may not always be accurate.

 

If there are concerns with a candidate’s suitability, it may help to discuss them directly with the applicant first. Employers may consider offering a job role on a probationary period if this is the case.

 

Can an employer give a misleading ‘good’ reference?

The employer could end up being liable to the future employer who hires on the back of a misleading good reference, if someone is hired in reliance on the reference. For example, saying of Ronnie Biggs ‘He is used to handling large quantities of cash’ might well have been true, but it could be taken as a positive statement, ignoring his involvement in the Great Train Robbery, and a risk that he might do the same with the new employer’s money.

 

Problems with references

If an applicant is unhappy with a reference provided about them, they can request a copy. The request must be made to the author and usually has to be made in writing.

 

If a job applicant believes a reference is inappropriate and damaging they may be able to claim damages in court. They must be able to show that the information given in the reference was misleading or inaccurate, and has led to them suffering a loss (such as a job offer being withdrawn).

 

An internal applicant should approach their line manager or human resources informally if they have an issue with a reference.

 

Employers unable to obtain a reference from the job applicant’s nominated referee should inform the job applicant and consider whether another suitable reference can be obtained. Other options include hiring the applicant on a probationary period to assess their suitability.

 

Job offers and references

If an applicant is offered a job, there are two types of offer that can be made:

 

  • A conditional job offer. This can be withdrawn if the applicant doesn’t meet the employer’s condition, for example, satisfactory references.

  • An unconditional job offer. Once an unconditional offer is made this cannot be withdrawn and if accepted a contract is formed.

 

Once an employer has received satisfactory references and informed the applicant, an unconditional job offer can be made. Employees should wait until they receive an unconditional offer before handing in their notice.

 

What sort of claims can come from references?

Former employees might claim for the loss of the chance to get a new job, which might involve significant claims for loss of earnings with no theoretical limit, but subject to the normal rules requiring people to mitigate their losses by going for other work.

 

There could also be claims for wrongful processing of personal data, and in the Employment Tribunals claims for post-employment victimisation or discrimination if there is a link between the ‘bad’ reference and a protected characteristic. For example, an employee had brought a claim for discrimination and the employer tells a future employer not to employ them. Similar considerations would apply for whistle-blowers.

 

For more information about employment references or the recruitment process, call a Deminos advisor on 020 7870 1090.