References and how to give them

Have you ever received a lengthy questionnaire about an ex-employee seeking all sorts of details, from their sickness record to a detailed analysis of their performance record?    For a smaller business, finding this information about ex-employees and putting it together in a reliable and accurate form can take hours.

Did you know there is no general legal obligation on employers to give references to anyone?

But before you get too excited and decide to throw all those reference requests in the bin, here are some top tips on references and how to organise when to give them and how.

1. Have a consistent and published (to your staff) policy on giving references.  
2. “Tombstone” references.  If you are not going to give anyone a reference beyond confirmation of start date, finish date and job title, make sure everyone who comes to work for you knows that.
3. Stick to your policy – do not single some people out for special (worse) treatment.  This is vital if your ex-employee:
   a.   has made an equality-related grievance (victimisation)
   b.   has taken an equality-related tribunal claim (victimisation)
   c.   belongs to a group that might give them a basis for asserting that members of their group tend to get worse references from you
   Sometimes as part of a compromise agreement you may find that you have to agree a reference in a particular form which does not match your usual policy, but avoid that if possible.  Better to use your policy to frame the type of reference that you are willing to give in the compromise.
4. You are liable for factual references you give.  If the new employer relies on them and suffers harm as a result, you could owe compensation – so never lie in a reference
5. You are liable if you defame an ex-employee in a reference – so false bad references can be a problem for you too
6. If you want to go beyond a tombstone  reference and move towards a longer format (perhaps a monument to their achievements) make sure your opinions are supported by facts
7. Never disclose personal data about a named individual without their consent so:
   a.   Have a policy on references that includes a statement about when you will respond to requests
   b.   Ensure your managers comply with that policy and do not brief ‘off the record’
   c.   Only disclose ‘sensitive data’ about health, religion, politics with the express consent of the individual for the purpose for which you are disclosing it
   d.   Ensure sensitive data is securely transmitted - never in open post or open email.
8. You can usually limit your liability when giving a reference by using a suitable disclaimer.  So it’s useful to make it a part of your reference policy that a legal disclaimer will always be made on your references (and to follow your own policy!).

You don’t have to fill in other people’s forms – you can provide the references you feel are appropriate in the format you want.  It is very rare that you are actually under a legal obligation to provide a reference – if someone suggests that you are obliged to respond, ask for the specific statutory reference that establishes the obligation ... and do check that it does have that effect!

Almost always, you don’t have to give a reference if you don’t want to, and you don’t have to spend hours of your time on it.  But, remember that you will also be requesting references yourself some day.

And by the way, references are an extremely unreliable way of confirming an individual’s suitability for a role, since most referees won’t know what your role requires, and you won’t know how their old role was structured.  It is so easy to recruit someone with a glowing reference who turns out to be useless.  Often the information in references (other than start and finish date) is worse than useless – but sometimes taking up a reference can show up that your candidate is being less than truthful, which is valuable information before you take someone on.  So on balance, it’s probably still worth asking for references and reviewing them carefully – just don’t expect them to do too much for you.

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.
Tel: 08452 303050 begin_of_the_skype_highlighting            08452 303050      end_of_the_skype_highlighting Fax: 08452 303060 Website:  www.irenicon.co.uk