“It is important that employers do not ‘churn out’ a reference on a whim but should speak to the line manager of the employee before praising an incompetent employee he or she knows nothing about or denigrating the class star,” warns barrister Charles Price.
There is no general or statutory obligation on an employer to give a reference for an ex-employee, but in particular cases there may be a contractual or other obligation to do so, either express or implied. In a recent Court of Appeal case, a High Court decision was upheld, which stated that there is not, in all contracts of employment, an implied term imposing a duty on the employer to take reasonable care for the economic wellbeing of the employee; but the authorities suggest that when it comes to references employers should tread with care.
In the pivotal case of Spring v Guardian Assurance plc and Others, the House of Lords upheld a claim brought by an employee against his employer regarding an unfavourable reference that the employer had supplied. In the course of his judgment, Lord Woolf stated that where an employee cannot be expected to enter into a class of employment except on the basis that his or her employer will provide a full and frank reference, it is necessary to imply a term into the contract that the employer would provide such a reference based on facts revealed from “reasonably careful enquiries”. On this basis, it is important that employers do not ‘churn out’ a reference on a whim, but should speak to the line manager of the employee, before denigrating the star worker, or praising an incompetent employee he or she knows nothing about.
Reference for a poor employee
It is advisable for those writing a reference to think very carefully before adding anything negative. Often a personality clash can cloud better judgement, but any statement made should be accurate and preferably capable of support with empirical evidence. Often, a succinct short reference with an absence of praise will speak volumes.
If an employer does give a reference for an ex-employee he must take reasonable care to ensure that it is not misleading as it is not only the employee who may attempt to sue, but the also the company who thinks that they have been hoodwinked into recruiting an incompetent or incapable employee.
If he or she deliberately or negligently misleads the potential new employer into thinking the employee is better than he really is and the new employer can show he has suffered loss as a result of relying on the reference, the new employer can claim damages from the previous one. The loss in question would obviously be in this situation the loss of a salary from a future job.
If an employee leaves through a settled agreement and a compromise agreement is used as a means of settling, then an agreed reference is often included as part of that agreement. From the employees’ perspective this is a ‘belt and braces’ way of guaranteeing that an agreeable reference will be dispensed. A COT3 form is another way of settling a dispute and will do a similar job but will only be used if ACAS has been involved in the negotiations.
In giving a reference for an employee or former employee strict compliance by the employer with the requirements of the industry regulatory body, even if that is normal trade practice, is not of itself an adequate excuse for failure to ensure that the reference is fair and reasonable.
Discrimination and harassment
Of course, anything said or written by an employer in a reference is open to criminal charge or can be held to support claims that an employer has, for example, treated a female worker less favourably than a male worker. In an employment law context, however, the failure to provide a reference, rather than the express writing of racist comments, has been a more common feature of discrimination claims.
For the purpose of deciding whether an employer’s refusal to provide a reference for an employee who is suing the employer for race discrimination, tribunals have been reluctant to state whether this is itself unlawful victimisation. Tribunals have taken the approach that it is legitimate to take into account that the parties are, “not only employer and employee but also adversaries in litigation”. In the House of Lords case West Yorkshire Police & Others V Khan [2001] it was said in the judgment: ‘The existence of that adversarial relationship may reasonably cause the employer to behave in a way which treats the employee less favourably than someone who had not commenced such proceedings’.
By Charles Price, barrister
No5 Chambers
www.no5.com
10 Responses
Inadequate System
The system of providing references is inadequate and exposed to risk. Before I begin, I should point out that the vast majority of employers are excellent and the vast majority of employees are hard working and diligent.
The trouble with the system is that whilst former employers enjoy the benefit that they can act maliciously in the knowledge that they have to be proven to have done so to face any consequences, a wronged employee has to face the consequences immediately by becoming unemployed. Without the financial clout, it is also very unlikely an employee can rely upon litigation, as even at an employment tribunal a lawyer is important. This imbalance needs to be addressed and potential employers need to be wary of the fact that there is no more reason why a potential employee would be dishonest than a former employer. They should think carefully about who they trust more, because as the current financial crisis shows, there are some truly horrendous executives out there.
I have some experience of this. My former employer threatened not to provide a reference in retaliation to my resignation. This is an example of bad corporate governance, not this company’s strength by any stretch of the imagination. Fortunately, they are not taken very seriously by the industry (my current employer jokingly said words to the effect that a reference from them would be less useful than a reference from Burger King) and I easily got a job without their reference (and that’s the last time money will be the only factor in me taking a job with someone!) Others however may not be so lucky.
I would argue that it is in everyone’s interests for the system to be changed so that the balance is not heavily weighted in favour of employer vs employee but instead in a way that considers good vs bad. So, how can this be done?
1) Cap costs at an employment tribunal so employees are not financially vulnerable in litigation. Provide legal aid and don’t expose employees to employer costs. To avoid excessive litigation, install a claims office that acts like the CPS, accepting or rejecting cases.
2) Potential employers should ask for at least three references, if they are available, which will highlight whether a bad reference is fair or not.
3) Evidence that employers have persistently given poor references and lost tribunal cases should be permissable in court.
4) Employers should also be forced to state in their annual report how many good and how many bad references they have given. If they make negative references, they should be forced to be transparent about it.
employers gone bad
I was given a references by an employer I worked with for six months as my job entailed working with vulnerable children under child protection enquires my ex employer supplied a references that I was unreliable, not good with children or clients and could not write reports, despite being in the business for 25 as a social worker and 15 years as a psychotherapist and undertaking private reporting writing to solicitor,.
as if this references was not bad enough the ex employer recommended strongly to other potential employers to interview me under the warner interview process , for most unfamiliar with this it is an interview conducted into the potential personal life of the employees with an emphasis to clarify if I can keep my sexual gratification for children at bay, has anyone heard any employer writing such slanderous comments I have started legal action but given that this will take time this make me unemployable on any level and it will inevitably mean I will loose my home which is clearly the employers intention as I can think of no other reason for being so malicious and bloody minded .
Any comments anyone
Practical referencing tips
Jeremy Thorn’s sympathy for those who “sift 100s of references” highlights employers’ challenges.
In their efforts to protect themselves against the dishonest, employers usually delegate referencing to recruiters. But they rarely include “protection” amongst recruiters’ talent acquisition objectives, focusing exclusively on skills, cost and speed. Referencing, typically the recruitment bottleneck, is often a piecemeal effort. It needs discrete, specialist focus for it to be reliable and efficient.
Don’t underestimate “standard” written references. Lies on application forms indicate a propensity for dishonesty and many workers would lie on their CVs to get a job. You can easily corroborate leaving dates, titles and salaries.
And, whilst telephone calls might elicit “more useful information”, only rely on substantiated feedback. The courts might protect “hoodwinked” employers, but prevention is much less painful.
John Blank wisely mentioned the selection process; recognising that he can predict new employees’ future behaviours by considering everything he can learn during the entire process, not just referencing.
But when you’ve decided which candidates satisfy your competency, cost and time requirements, do check what they’ve told you:
1. Make sure you know who you’re dealing with. Many forms of ID are easy to forge or buy so use a reputable ID verification tool,
2. Independently corroborate the existence and validity of referees – don’t rely on candidate supplied contact information, or inbound telephone calls. You could end up hearing a glowing yet phoney recommendation from the candidate’s loyal friend, or an unsubstantiated, subjective smear,
3. When you offer employment “subject to satisfactory checks”, do what you say. Facing the highest vacancy levels on record, hiring managers hastily appoint people and neglect basic checks.
A final note on “should/must/ought”: Employers do owe a duty of care to each other and to their employees. And senior executives universally support information sharing to deter fraud and dishonesty. HR can demonstrate its strategic importance by executing their executives’ goals.
David Chernick
Reed Screening
References
Anyone who has to sift 100’s of references has my sympathy!
I wouldn’t personally expect a written reference to be any more trustworthy or less capable of malicious intent than I would a telephone reference, but at least I would expect the latter to be capable of offering much more useful imformation in principle, suitably well-conducted.
In the meantime, as new employers are highly reliant on the goodwill of ex-employers to provide references, I would suggest that anything that helps secure this might be rather valuable.
Kind regards to all who have partricpated in this discussion here and elsewhere
Jeremy
Reference
The refusal of an organisation to give a reference is normally taken as a sign that things are wrong, howeevr with many organisations worried about claims many organisations are moving into this area even though the person has done nother wrong.
I have only once given a bad reference but it was factual in that I said the police are currently interviewing this individual on a matter of theft.
It was true she had stolen £53,000 but had the nerve to loan a grievance with the Directors against my actions.
Grievance was trown out and she was convicted.
If you are sure of your facts you can give a bad reference.
The way it is
Jeremy
1. Not accepting unsolicited telephone references is actually policy within a large NHS Trust – this was brought in after misleading information was discovered to have been volunteered.
2. Having seen a Manager (at a different employer) make unsolicited telephone calls to volunteer false and certainly unsubstantiated statements (on more than a couple of occassions), this was done for sheer spite and without even looking at a personal file – I might add I was so disgusted with this behaviour that I jumped ship as soon as I could.
3. I can’t see why you have a problem with factual inforamtion, consider this:
An applicant has spent the last year temping, the reference from the agency will most likely come from their head office hundreds of miles away and quite possibly generated by the payroll department. It is near impossible to get references in this situation from any of the clients, most won’t want to give any inforamtion as they won’t have any information to base it on (apart from an invoice with someones name on perhaps). It is no good asking someone to try and remember a temp from three/six months let alone a year ago, so what are they going to tell you? You might be lucky and just get the inforamtion that you require (albeit the wrong information) from someone not qualified to give it.
I have no problem with checking out validity -but in the real world if you had to deal with high volume recruitment (and that means 100’s of applicants a week), you really wouldn’t have the time, and it is for this very reason that such measures such as not accepting unsolicited telephone references is in the policies and procedures.
Telephone references – ‘should/must/ought’
Just to add to a recent reply here, as kindly as I can for those who have never actually run an organisation: as far as I know, there is no legal requirement upon any employer to provide a reference of any sort.
So may I very gently suggest that any comments from any recruiter’s angle, of ‘should/must/ought’ of how and what a past employer might offer by way of a reference for a past employee, are surely demeaning to both the prospective employer and that person’s profession, whether as an internal HR manager or an external recruitment agent?
Whose is this ‘should/must/ought’? Clearly not the candidate’s – so the ex-employer’s? (But then, why?)
It is perfectly reasonable to suggest that any telephone references need proper validating – so why not call them yourself on their nominated number? Or invite them to call you? Who is doing whom a favour here?
Any suggestion that “I never take take unsolicited telephone references” does rather hint at a closed mind, focused on process instead of outcome, don’t you think?
And how do you feel about “nobody should have any problem with sticking to references which provide factual information”? In the same sentence, does this not possibly hint at – how might I indicate this most productively? – a certain business naivety?
If I were ever to be treated in such a high-handed way as a candidate, of course I might never know. But if I were ever to find out, I would know immediately this was not the sort of organisation I might ever wish to work for. As a recuiter, I would adamantly resist all such bureaucratic approaches to gaining a reference, as probably being worthless. And as a referee, I’d most certainly feel it my duty to decline my participation and, out of sheer good faith, alert any ex-employee of mine accordingly.
I don’t want this to seem a personal attack on someone else’s view which I am sure is offered in all good faith, on a process which I personally observe as an employer and NED works only when the new employer has the trust of the ex-employer.
Both employers and employees certainly need and deserve accurate references, and surely ‘should/must/ought’ can have no role in this?
If we want a reference on somebody from others, may we not recall *they* are doing *us* a favour? Not the other way around?
Sincerely
Jeremy
and the verbal reference was provided by who?
I always think it is a bit of a cop out when people immediately mention about telephoning for verbal refences.
Yes sure if you really need to confirm what has been written in a reference or need to to clarify. Thing is you send out a refence request by post and the next thing you know the referee has phoned and volunteered information verbally: “I’m not prepared to provide a written reference but….” your caller then goes to say what an awrful candidate your applicant is, and how they they rue the day they set foot in the building.
Still OK? well how do we know that the person calling is the person they say they are or that they have genuine motives.
For all we know it could be an jealous ex co-worker with a grudge, sprurned love interest, manager from hell on a power trip or even a third party who has no real knowledge but gets importance from making a decsion.
If what they are saying is true then they should put it in a written reply.
I never take take unsolicited telephone references, nobody should have any problem with sticking to references which provide factual information.
References
I am neither a lawyer nor an HR expert, but I have delivered a vast number of references in my time as an employer, and have received even more.
As in many such matters, may common-sense prevail?
First, it seems reasonable only to ask and offer factual evidence, on either side of the recruitment desk. Because the balance of employment law seemingly favours the employee in so many cases, it may be wise to offer no hostages to fortune as an employer and referee but, equally, no unneccessary or unreasonable obstacles either for the future employment prospects of any ex employee.
Second, and more importantly perhaps, the onus should be as much on the next employer to ask the ‘right questions’ as on the past employer to answer them. As an employer, I might acknowledge my formal duty to be fair to en ex-employee, but I have no duty of care to my ex-employee’s future employers – other than goodwill.
Which is why I abhor all ‘standard’ written requests for a reference – which seem to be particularly common practice in the Public Sector where reference-gathering is often delegated to a quite junior person who will have no specific engagement with that candidate’s actual employment. On that basis, I think the only duty of care as an ex-employer is to confirm the candidate’s dates of employment with you as a matter of record and little else, as a mindless and bureaucratic form-filling exercise.
However, I DO firmly believe in an informal and well-informed telephone conversation, either as a potential employer or as an ex-employer.
As a potential employer, I can ask important but informal questions about the nature of the candidate’s employment, responsibilities, performance and departure in confidence, and as an ex-employer I can answer in similar confidence.
Moreover, as a potential employer I can (and must) read between the lines of the answers. That must surely be my job, not the referee’s? (Rather like the old joke of a child’s parents receiving a school report from a headteacher saying ‘Jimmy continues to forge his way ahead’?)
From this, may two further points be especially helpful?
If you want a truly informative reference for a candidate, *don’t* send a standard questionnaire? If you value a real insight, pick up the phone! (And if you are only ‘protectiong your back’ with a routine writcten querstionnaire, know that you aren’t?)
And if you ever receive a standard questionnaire as an ex-employer, feel quite happy in replying that while you might confirm the basic facts of past employment of an ex employee, you can only respond to requests for a more detailed reference informally and off the record?
As a candidate for any job, I couldn’t personally ask for anything more. (And then, I wouldn’t personally want to work for any organisation who asked for anything less!)
I hope this may be helpful!
Jeremy
New employer’s loss
The article says that if a reference is deliberately or negligently misleading, the new employer can claim damages from the previous one and that the loss would obviously be the loss of a salary from a future job. I don’t think this can be right. Surely it would be the loss caused to the new employer as a direct result of the employee’s not being as good as the reference made him or her out to be. This would be virtually impossible to measure. Bear in mind also that the new employer is ultimately relying on its own selection process before making the appointment. It must in practice be impossible for the new employer to succeed in any claim against the old one. Does anyone know of a case where a new employee has succeeded in obtaining damages in a situation like this?