References have been an HR headache for years now and the subject has been considered (yet) again in the recent case of AB v A Chief Constable (2014).
In this case the High Court had to balance an employee’s legitimate expectations and rights under the Data Protection Act 1998 (‘DPA’), against an employer’s public duties and the public interest.
In summary the High Court held that a police force should not be able to send details of a former employee’s extended absence record and unproven disciplinary allegations to the new employer. The Court was forced to balance the public duty to inform the new employer of the outstanding disciplinary allegations, against the employee’s legitimate expectation based on an undertaking by the employer that only a standard reference would be given.
Factors to consider when seeking a reference
Contact with the applicant’s current employer should not usually be made without the applicant’s permission.
Employers would be well advised to include a job description with the request for a reference together with structured, relevant questions. Simple references dealing with dates of employment, job title and skill set may be adequate.
Job offers ‘subject to satisfactory references’ although common, can cause difficulties and lead to legal action. Sometimes references aren’t supplied or poor references can be unfairly given. Probationary periods can be a sensible way to deal with delayed/inadequate or non-supply of references.
Employees should be aware that employers frequently use social networking sites to seek out information on candidates for a job.
Top tips when providing references
An employer is not obliged to give a reference (save in limited circumstances). Although considering the significant impact on the ex-employee it is quite rare for an employer to refuse. There are essentially three ways to deal with a reference request, firstly give brief details providing dates of employment and position, secondly give a detailed reference with a disclaimer and thirdly allow personal references to be given separately to the employer.
If the first strategy is adopted it is less contentious to also state that it is the employer’s policy to provide standard references with only those details included. If the second strategy is adopted it is sensible to include a disclaimer of liability in respect of any negligent misstatement.
An example of a disclaimer would be:
“The above information is given in confidence and good faith and is believed to be accurate, based on the information available to the employer. No responsibility can be accepted by [the employer] or any of its officers or employees for any errors, omissions or inaccuracies in the information or for any loss or damage that may result from reliance being placed upon it”.
Be aware that the subject of the reference could bring a claim for defamation, discrimination, malicious falsehood, negligence and a contractual claim and the future employer could bring a claim for negligence and the tort of deceit.
• Mark references ‘strictly private and confidential for addressee only’.
• Take care when commenting on suitability.
• Balanced view of the employee should be given, avoiding subjective comments.
• Comply with any company policy.
• If brief reference supplied, explain that it is company policy to provide such a reference.
• If lengthy reference supplied and disclaimer used, ensure disclaimer is reasonable.
• Ensure reference consistent with reason for dismissal.
• Ensure no inaccurate statements are included in the reference.
• Avoid discrimination.
• Ensure compliance with the DPA with regard to personal data and sensitive personal data (seek employee’s consent).
Employees are most businesses’ greatest assets and so employing the right ones is crucial. Employers recruiting have a vested interest in obtaining full and accurate references, however, in these litigious days ex-employers are increasingly guarded with the references they give. It is increasingly common for employers to have a policy limiting references to dates of employment and job position.