Do you know where you stand with references and whats expected?

It is common practice for employers to request references in respect of new employees in order to clarify the individual’s suitability for a particular role.

 A reference will enable an employer to obtain or confirm factual information regarding employment history, job titles, responsibilities, performance, conduct, qualifications and experience. 

It is easy for an individual to make false claims in an application form, and equally so during the interview process, so employers should make certain that any references sought are always received.  Ideally references should be obtained from the current or most recent employer. Where an individual has not previously been employed however, it will sometimes be necessary to seek personal references.

Most references will be provided in response to a written request.  It is also quite usual for telephone references to be sought, although employers should take care to speak to the named referee.  Care should also be taken when seeking references from a current employer, as sometimes the employer can be unaware of their employee’s intention to leave.  In such circumstances, prior approval must be gained from the potential employee before requesting the reference. 

Whilst references from former employers can be sought early in the recruitment process, it is best not to approach a current employer until the final stages.  References are commonly taken up once the position has been formally offered and accepted and when an offer of employment is conditional upon satisfactory references, this should be stated in the offer letter.

Providing a Reference

Case law provides that an employer has a duty of care to ensure that all information given in a reference is accurate.  Whilst there is no specific legislation governing the provision of references, the Unfair Contract Terms Act 1977, the Data Protection Act 1998 and the Financial Services and Markets Act 2000 may apply in relation to disclaiming liability; processing information; and, in the provision of references for employment regulated by the Financial Services Authority. 

Any act of discrimination committed by an employer, even after an employment contract has ended, will fall within the remit of anti discrimination legislation.

Any employee given a poor reference as a result of their race, sex, sexual orientation, age, religion or disability could therefore make a claim against the supplier of the reference where the information provided cannot be substantiated. 

When giving a telephone reference, it is important to double check that you are speaking to the person authorised to ask for the reference.  It is often good practice to take the name and telephone number of anyone requesting a reference in this way in order to telephone the caller back when all the information is to hand.

Unless there is an implied or express contractual term (e.g. in compromise agreement that contains a promise to respond o reference requests in accordance with an agreed form or in employment regulated by the Financial Services Authority) there is no common law duty to provide references for current or ex employees.  Whilst there is no legal obligation to supply a reference, any refusal to provide one may adversely affect the individual’s chances of gaining future employment.

The primary risk in giving references is that of negligence and employers must exercise reasonable care when preparing references for current and past employees.  Case law dictates that there is a duty of care to both the person about whom the reference is written and the recipient of that reference.  Where a reference contains unsubstantiated or false information about an individual, the person in question may be able to claim damages for defamation. 

The information supplied in a reference must not be discriminatory, maliciously untrue, libellous or negligently prepared.  However, where there have been acts of misconduct or performance issues during employment, then such information can be stated provided there are reasonable grounds to make such a statement.