Top transport solicitors, Backhouse Jones, sent out an employment newsletter earlier in October about the use and maybe the abuse of providing references. In essence, and like so many issues to do with employment these days, there is no easy or simple guidance about when to ask for or when to provide references.
Below you will find an edited version from their newsletter but I highly recommend you download it and read in full through for better clarity. You can find it at: https://www.backhousejones.co.uk/download/employment-newsletter-october-2018/
ACAS – Employee Reference Guidance
The use of references in hiring employees is becoming ever more important, as the information age progresses and contact time with potential applicants reduces further. Consequently, ACAS has published revised guidance as to how previous employers must conduct themselves when completing references for employees moving on and also when requesting references for prospective employees.
Does an Employment Reference Have to be Provided?
Generally, there is no legal obligation for an employer to provide a reference. An employer may choose whether to provide one and how much detail to include.
What can an Employment Reference Include?
An ordinary reference is likely to include basic facts about the relevant employee such as details as to his/her duties and employment start and end dates. References should not include irrelevant personal information. You may be asked specific questions regarding a former employee’s attendance level, or whether they were dismissed and for what reason. Whilst such details can be included, the answers must be fair and factual. Opinions or other subjective comment are not advised as they are more susceptible to being challenged.
When Should References be Provided?
References can be required for a position at any stage of the recruitment process and it is generally advisable that job advertisements state at what stage references will be required. Employers must only seek a reference from the applicant’s current employer with their permission.
Can an Employer Give a Bad Reference?
References provided must be a fair and accurate reflection of the individual. Thus, it must not include misleading or inaccurate content. Any opinions – as mentioned above – must be supported by a fact. In circumstances when it is tempting to divulge detail of a former employee’s conduct that was not deemed to be satisfactory, do refrain as there can be consequences costly to the business if they are not supported and breach company policy to provide a factual reference only.
Resolving Problems with References
Where a job applicant is unhappy with a reference provided, they can request a copy from either the employer who gave the reference, or the employer who received it. This can then be used by the job applicant as an evidential basis, upon which damages can be pursued in Court.
The primary message communicated by ACAS in the revised guidance is that references must be factual and consistently applied. In order to achieve this, ensure a policy is in place to all staff and if this is deviated from, ensure any additional information provided can be supported to protect against any potential claim for damages.
FOR ALL RELATED ENQUIRIES, PLEASE CONTACT THE BACKHOUSE JONES EMPLOYMENT TEAM ON 01254 828300
Please note: This publication does not constitute legal advice