In this month’s article we look to employment references. Employers are often faced with questions around; do we need to obtain them, do we need to provide them, how much do we say, how much do we rely on this information?
The increasing prevalence of GDPR legislation and even employment law advancements, can make the process fraught with challenge in certain circumstances.
So lets look at some of the key areas.
Employment references are undoubtedly still “a thing”. For many employers it is still a vital element of their recruitment cycle and plays a very valid role in the appointment of individuals. For others it is regarded as a tick box exercise, and for some it isn’t carried out at all. But regardless of whether an organisation conducts reference checks for their prospective employees, they will still be the recipient of requests from others to provide background on individuals who have been in their employment, so it is important to have at least some awareness of the area.
The provision of references supports employees in their quest for employment, the employer owes the subject a duty to take reasonable care to ensure that the information contained in the reference is true, accurate and fair and does not give a misleading impression. Employers also have a duty of care towards any prospective employers, and an inaccurate or misleading reference could lead to a potential claim for negligent mis-statement or misrepresentation. Therefore, employers have a critical role to ensure a balance between fairness to the employee, and a duty of care to other employers.
Interestingly, the sector, type and size of organisation, plus the related role now often designate the type and worth of any reference sought. That is, for a role in the Health, Care, Education or Public Sector reference checking is very much still common practice. However, in industries such as retail, hospitality, commercial, Sales, Customer Service for example a written reference may not be held to the same reverence, and other methods may be weighted more heavily to determine one’s suitability for a role.
Unless an employer is specifically obliged to give a reference under regulatory rules or has agreed to provide one, they may refuse to do so.
Examples of when an employer must provide a reference include;
That said, most employers do provide references when requested, as it is good practice, helps maintain an amicable relationship with the employee and refusing could be alleged to be discriminatory. There is particular risk if references are provided either by the company or by its managers, to some but not others.
Similar to the above answer, you may need to obtain one in certain sectors, otherwise there is no legal obligation. Employers may choose to continue to obtain references if it is an existing practice within their organisation, because they state that they do it within their internal policies or if it is a role with a higher level of risk, for example cash handling, or handling of sensitive information. However, employers must ensure whatever approach they adopt applies to all employees equally and fairly.
When providing references – Ensure consent has been provided by the individual before sharing their information with a prospective employer or agency, they should provide you with the employee’s written consent when requesting the reference. The provision of references should also be explicitly covered within your organisation’s Privacy Policy, and the approach should always align with that Policy. Remember, your obligations in relation to the processing of their information and their rights to confidentiality still exist even if their employment has ended.
Consider adopting a policy in relation to the type of references your organisation provides. This may be to provide consistent and factual references only, which confirm dates of employment and position held. To support that aim, you might also consider all reference requests for your organisation perhaps coming through, or being processed by one person or department.
Do not share information which is subjective, reflective of an opinion, or may negatively impact the ex-employee’s prospects unfairly, for example referring specifically to disability related absences.
When requesting references – Ensure job offers are conditional upon receipt of satisfactory references. Best practice would be that the new employee does not commence employment until received, otherwise it may weaken the argument that the employment is actually conditional upon them.
The timing of gathering references is also pertinent, you might confirm to the applicant or prospective employee that references will not be sought until job offer has been made and accepted. You should also collaborate on this with them to ensure they have shared the news of their departure with their employer, prior to any communication you might make. Likewise, in gathering the list of referees from the employee, you are obtaining their consent to gather information related to their employment, this should also be reflected within your privacy policy, under a specific section for recruitment. Alternatively you may have a separate Privacy Policy related specifically to Job applicants, the entire process of recruitment and the processing of such information, including references.
Below are some of the ways references, if not handled appropriately, can askew perceptions and even the entire recruitment process, whilst also increasing risk for employers;
However, despite increasing challenges around the use and provision of references, they remain, in certain circumstances a vital tool within the recruitment process if used appropriately and consistently.
Under the Data Protection Act 2018, there is a general exemption regarding confidential references if a subject access request is made. Both the giver and recipient can refuse to provide personal data consisting of a reference given in confidence for the purposes of the actual or prospective education, training or employment of the data subject. Therefore, Marking References as Private & Confidential may also protect an organisation from any future claims arising from their provision of a reference.
If you have an queries regarding the provision of references, or need support with ER complexities related to references, please do reach out to us.