Apr 25, 2013

Reference Refresher

Replying to a reference request


It’s one of those tasks that if you’re not an HR professional can cause a little shudder of concern.  If the future employer sends a form, that can make things seem so much easier, and if you liked the employee that’s leaving well even better.  But sadly it’s just not that straight forward.  So, here are our do’s and don’ts for the smaller employer who doesn’t have the luxury of an HR team to lead them through the legal pitfalls when giving a reference

DO

  • Check your contract of employment and handbook as these sometimes state exactly how the Company will deal with references, or it may be implied by custom and practice on how the Company has dealt with previous reference requests.
  • Nominate one person in the business with responsibility for references.  This will ensure fairness and consistency.  This is the beginnings of your policy eg  all references must be sent to XXXX.   This will also ensure that you do not have staff just sending out comments about colleagues, on Company headed paper which may make you, as the employer liable
  • Decide what information you want to give out.  Many employers may, when requesting a reference send out a large form, you are under no obligation to give them all this data.  You may decide that you will only confirm employment dates and job title.  You may include a job description or brief overview of the role, tasks, skills used. Add this information to your policy.  But whatever information you give out ensure that you are giving out the same information for each and every reference request.  And state in your letter that the information provided is in accordance with you policy on references
  • Be aware that as the employer you have a duty of care to ensure that any information you give out is accurate, factual and not misleading.  For example if you record absence and this employee has a high sickness record you can state this in the reference.  However, have you addressed the issue with the employee?  And have you given this information out on other reference requests for other employees?  If not, why this one?  Could the employee have an underlying condition that is recognised as a disability under the Equality Act 2010 and could be accused of giving misleading information
  • Mark you reply ‘Private & Confidential’ and state that the reference ’is given in good faith’
  • Decide if you will provide ‘open’ references.  These are the sort that some employees might show you at an interview, usually headed ‘To Whom It May Concern’.    Our recommendation is not to provide them.  However, many employees if going to work overseas may want something to confirm their employment with the Company.  In cases like this you can write to the employee confirming key details and state this is not a reference and should one be required then any future employer should make contact having first obtained permission
  • Respond to references quickly as many employers will not confirm a start date until they have received all the references back.  And most employers state that the job offer is subject to receiving satisfactory references.  What you say, how you say it and the time you take to say it could all impact on whether the employee gets the job or not.

 

DON’T

  • As with any written communication don’t write anything about anyone that you would not want that person to read or that you have not discussed with them during their employment with you.  Some companies will have an ‘open reference’ policy and will show the reference to the new employee.  They should tell you this at the time you are asked to provide the reference.
  • Give out information about neither an existing employee nor an employee who has previously worked with you without ensuring you have their consent to do so.  Many larger employers will, when sending the reference request also send you consent which is signed and dated from the person whose information you are to give out.  If in doubt ask the Company to send you this, otherwise you could be in breach of the Data Protection Act 1998.
  • State anything which could amount to malicious falsehood nor make remarks that could be considered defamatory
  • If asked by a future employer if you know of any convictions, don’t give information on any convictions that are now spent convictions as this could result in a negligent mis-statement.
  • Give out verbal references.  This is popular in industries where people are known to each other
  • Give one employee a factual reference and a full reference to another nor a reference for one employee but not for another.
  • Discriminate unlawfully as a former employee can still bring a claim as a result of any comment made in the reference
  • If an ex-employee has previously raised a discrimination case or made a complaint of discrimination and at a later date requests a reference, do not withhold the reference as employee / ex-employee is protected under the Equality Act 2010
  • Provide a bad reference that cannot be substantiated as there is then a risk of being sued for damages if the employee doesn’t get the job and worst still the employee may bring an action against the employer for defamation or discrimination.
  • Give a glowing reference for an employee who turned out to be a nightmare, or even just satisfactory – if they perform badly in their new job and you withheld relevant information the new employer could claim damages
  • And don’t forget that an employee can under the Data Protect Act 1998 request to see a copy of the reference given by their ex-employer, even if the referee refuses consent, this will not necessarily justify withholding the information, particularly relevant if a provisional job offer has been withdrawn.

 

Deirdre Allen – Human Resources