Employment References: Guidance for Colleges November 2011

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1 Introduction

Colleges use references as part of their own recruitment process and also give references for employees and former employees. This guidance is intended to assist managers and other College staff when giving or interpreting references for recruitment and selection purposes.

The purpose of references is to obtain information from a third party to provide a factual check on a candidate’s employment history, experience and general work performance to inform the employer’s assessment of the candidate’s suitability for a particular vacancy.

It is particularly important to ensure that all references given on behalf of the College are accurate and fair.

The House of Lords ruled in Spring v Guardian Royal Exchange (1994) IRLR 460 that the employer was liable for damages for negligent statements made in a reference which then resulted in an economic loss on the part of the employee.

In giving a reference the employer owes a duty of care both to the subject of the reference and to the prospective employer. Cases such as Bartholomew v London Borough of Hackney (1999) IRLR 246 and TSB Bank plc v Harris (2000) IRLR 157 demonstrate that it is not enough to give an ‘accurate’ reference, it must also be ‘fair’. This isn’t a historical issue and cases such as Jackson v Liverpool City Council (2011) EWCA 1068 are still demonstrable of the potential issues references may cause. The reference must not give an unfair or misleading impression overall, even if its discreet components are factually correct.

References should not provide subjective information as to the applicant’s suitability for the job on offer. It is for the selection panel/line manager to assess the suitability of a candidate for a particular role and referees are not expected to express views about a candidate’s potential.

It is important to note that employment references should not be used in isolation for vetting candidates but should be used in conjunction with other checks to ensure that an appropriate recruitment decision can be made.

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2 Is there any legal obligation to reply to a

reference request?

There is no legal obligation on an employer to provide a reference unless an obligation to do so is;

included in the contract of employment

a statutory requirement11

agreed in connection with a compromise agreement

part of a settlement before ACAS or after an employment tribunal ruling

Refusal to provide a reference can be interpreted as negative by the prospective employer, and may be perceived as victimisation by the individual. There will be a risk of a claim for discrimination if the employer refuses to provide a reference because of a protected characteristic, or because the particular employee or ex-employee has brought a claim for discrimination against the employer. It is standard practice to give an employment reference upon request, and references are recommended across the Education sector as an appropriate pre-employment vetting check for safeguarding purposes.

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Financial Services and Markets Act (2000) states that references must be provided by former employees for

those working in finance dealing with controlled functions, in summary, (taken from Section 22 of the Act -

Regulated Activities Order: Specified Activities) roles may include staff working in payroll, finance and posts with

responsibility for effecting contracts of insurance.

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3 Accuracy of reference

3.1 Duty of the Reference Writer It is the duty of the reference writer to exercise reasonable care and skill in providing a reference. The writer should take reasonable steps to:

Ascertain that the information on which the reference is based is factually correct. Even if the reference writer honestly believes the inaccurate statements to be true, he/she may still be negligent if he/she has not taken reasonable steps to check the veracity of statements.

Ensure that any opinions expressed about the subject of the reference are reasonable in the circumstances and can be justified. The reference writer may choose to express opinions but it is important to be aware that opinions are, by their very nature, subjective and so they must be arrived at

References for Safeguarding Purposes It is not a legal requirement to obtain references for safeguarding purposes, but it is

recommended as part of safer recruitment procedures. The Government guidance,

‘Safeguarding Children and Safer Recruitment in Education’ (January 2007) recommends that

ideally two references should be sought for every candidate short-listed for interview, one

professional reference and one character reference. The purpose being to explore any

issues prior to interview and raise any concerns with the candidate at the interview.

Colleges should note that this is not a legal requirement and since the guide was published

there have been significant changes in equality legislation, which need to be taken into

consideration when seeking employment references.

It is not practical to obtain references for candidates prior to interviews, especially as many

candidates do not want their current employer to know that they are seeking new

employment. In addition, the Equality and Human Rights Commission (EHRC) recommend

that references should be sought after the selection decision is made (see Section 3.5).

Colleges are unlikely to have obtained references prior to interview and AoC’s advice is that

Colleges should ensure that any offer of employment is always made conditional subject to

receiving two satisfactory references.

One reference should be from the current/previous employer and at least one of the

references should be from the most recent employer where the person worked directly

with children, or in contact with children. It is not necessary to obtain references from all

previous employers where the individual has worked with children.

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reasonably. The person expressing the opinion should always consider whether, if called upon to do so, they could justify why they hold those opinions; that is, whether the opinion has a proper basis in fact.

Create a fair impression overall. This might mean putting certain factual matters into context where not to do so would create a misleading impression.

Avoid making vague statements that could be open to interpretation.

Having checked the factual accuracy of statements and the reasonableness of opinions contained in the reference, the reference writer should then “stand back” and ensure that the effect of the whole reference is fair and not misleading.

A reference writer who is negligent in the above respects will render the College liable for any loss which the employee incurs as a direct result of inaccurate statements, opinions, or impressions. An employee or former employee could bring legal proceedings against the College for libel or defamation of character if they consider the reference to be inaccurate. It is therefore essential that all information provided can be substantiated with factual evidence if challenged at a later date.

Where the person providing the reference has limited knowledge of the subject, this should be clearly stated. In appropriate cases the College may make the provision of a reference conditional upon a disclaimer of liability to the subject and to the recipient.

Whilst it may sometimes be tempting to provide a reference that portrays the employee in a better light than is justified, this should not be done since a reference which is unduly favourable could potentially leave the College vulnerable to legal action by the recipient of the reference. The prospective employer may have a negligence claim against the College if damages are suffered as a result of conduct by the individual that the College was aware of.

3.2 The Data Protection Act 1998

Under the Data Protection Act 1998 (which extends to computerised and manual data), individual workers have a right to gain access to information that is kept about them. This right is known as ‘subject access’. The provision of a reference from one employer to another will usually involve the disclosure of personal data and so it will be important to ensure compliance with the Act both when giving and receiving references.

The Employment Practices Data Protection Code recommends that references are only provided

for an individual if it is certain that it is the individual’s wish for the employer to do so.

Due to the fact that the Act prohibits the use or disclosure of personal data without the

individual’s consent, the reference writer should make sure that the individual has

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consented to the provision of the reference. This will usually be the case but not, for

example, if the prospective employer has made a speculative inquiry on its own initiative.

In either case, the reference writer should ask the employer requesting the reference to

confirm that the individual has consented to the reference being given. Consent may be

sought directly from the employee if there are any reasons to doubt that consent has

been given.

With regard to ‘sensitive personal data’, the position is different. The individual’s explicit

consent is required for disclosing matters which concern:

racial or ethnic origin

political beliefs

religious beliefs (or of a similar nature)

membership of a trade union

physical or mental health or condition

the commission or alleged commission of any offence

any proceedings regarding an alleged offence or the sentence of any court

A request for a reference will not in itself amount to consent for these matters to be disclosed.

Colleges should be clear about who in the organisation is permitted to write references for current and previous employees and the types of information that can be provided in the reference.

Where an individual makes a request to see a reference received by the College about him/her, and that document enables a third party to be identified, a judgement should be made as to what information is reasonable to withhold.

An individual is not entitled to have access to any reference given in confidence by their employer if the reference is given for the purposes of the education, training or employment (both present and prospective) of the employee. However, the individual will be able to apply to a new employer, or potential employer, for a copy of the reference provided by the existing or previous employer. This is significant, not only in terms of the individual being able to gain evidence for a possible claim in negligence, but also in terms of data protection for the removal or correction of inaccurate data.

3.3 Disclaimers The College may have a policy about whether or not to use disclaimers when giving references. If it is the policy of the College to use a disclaimer, this means that a statement will be included in the reference which provides that the College

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will not be liable if there are any errors or omissions in the content of the reference.

Some employers may refuse to provide a reference unless the individual agrees that the employer will not be liable in this respect. Colleges should note that:

If there is an implied contractual duty to provide a reference (which may be the case if it is “the norm” for references to be given), a College may breach that duty if it refuses to provide one, unless the subject agrees to a disclaimer of liability.

A disclaimer may well fall foul of the Unfair Contract Terms Act 1977 which prevents a person excluding liability for negligence or breach of contract unless the relevant exclusion is reasonable

The general view is that a disclaimer is likely to be ineffective if the content of the reference gives facts which the employer is reasonably expected to have known, such as dates of employment, job role, etc. However there is no disadvantage in including a disclaimer, for example in circumstances where the reference writer is giving an opinion, although it may not avoid litigation.

3.4 “In Confidence” References should be marked “private and confidential” and “for the attention of the

addressee only”. While most references are written and received “in confidence”, if there

is a claim for damages the reference may have to be disclosed. It should be noted that

references received may have to be disclosed in any event under the Data Protection Act,

as outlined above. Reference writers need to be aware of this when drafting references.

3.5 Equality Considerations Following the case of Coote v Granada Hospitality Ltd (1999) IRLR 452 the non provision of

a reference by an employer is capable of being an act of discrimination, even where the

employment relationship has terminated. In that case, the tribunal found that the

applicant had not been given a reference because she had brought a sex discrimination

claim against her former employer and this omission amounted to unlawful victimisation.

Under the Equality Act 2010 it is unlawful to discriminate against applicants or employees

because of a protected characteristic – this includes:

Race

Sex

Disability (or because of something connected with their disability)

Sexual Orientation (lesbian, gay, bisexual or heterosexual)

Religion or belief

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Gender reassignment

Pregnancy and maternity

Being married or in a civil partnership

Age

In giving and acting upon employment references, care should be taken to avoid

intentional or unintentional acts of unlawful discrimination. This is particularly the case

where opinions not based on any objective evidence are sought or offered on the

suitability of applicants, for example via an informal telephone discussion. Any opinions

should be backed up by objective evidence.

The Equality and Human Rights Commission (EHRC) have published, “The Equality Act 2010:

Code of Practice on Employment”, which gives guidance to employers on the selection,

assessment and interview process. The Code recommends that references should only

be obtained after a selection decision has been reached; the aim being to ensure that the

selection decision is based on objective criteria and is not influenced by other factors,

such as potentially subjective judgements about a candidate by referees. The Code also

recommends that referees should be sent a copy of the job description and person

specification as this is more likely to ensure that the reference focuses on information

that is relevant to the job.

Particular care should be exercised when considering references from referees where it

appears that applicants may have experienced difficulties arising from a protected

characteristic, trade union membership/activity or criminal convictions that are not

relevant. Where a reference is subjective and negative, it is good practice to give the

successful applicant an opportunity to comment on it.

4 Giving references When replying to a request for an employment reference, if specific questions are asked, the College can decide whether to answer none of them, all of them or to leave some questions unanswered.

As a general rule, Colleges should have a procedure in place to check all references written to ensure that the content is accurate, fair, not misleading and justified.

State only the facts and opinions which can be substantiated - “if in doubt, leave it out”. Speculative statements should be avoided. Reference writers might refer to existing records, such as appraisal notes, to provide factual comments.

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4.1 Disclosure of References If there is a request to see the reference then it should be considered, bearing in mind

that the reference may have to be disclosed during legal proceedings or, in any event, by

the recipient under the Data Protection Act (see section 3.2).

4.2 Agreed References Sometimes after disciplinary action, court action or a compromise agreement, a reference

may be agreed with the individual and/or their trade union representative. Again, do not

be tempted in these circumstances to provide a reference that is more favourable than is

justified (see 3.1).

4.3 Open References Open references are those not addressed to a specific person or for a specific job i.e. “To

whom it may concern”. Safeguarding guidance advises educational establishments not to

provide or accept open references as they will contain general statements about an

individual that can be re-used in a variety of different circumstances and so are not

reliable. References are a valuable tool to support employers in assessing suitability to a

role; those references which do not include enough detail required to make an

appropriate assessment of suitability should not be relied upon.

If a College does agree to provide an open reference it should be written with caution and

in limited circumstances, these references should be dated so that it cannot be used

years after it was written when circumstances may have changed.

4.4 Telephone References In extreme circumstances, where information is required urgently, an employee of the

College may be called upon to give a telephone reference. The College should have a clear

policy on whether telephone references will be given or not. AoC’s advice is that

telephone references should be approached with caution and the caller should be advised

that if they send a written request for a reference the College will respond in writing.

If the College does allow telephone references to be given and the person requesting the

reference is unknown, the referee should ask for the caller’s workplace details including

the address and telephone number; then call them back to ensure they are speaking to

the right person at the right organisation. Do not be hurried or harassed into responding

to questions via telephone. Reserve the right not to answer specific questions. Take

notes of the questions asked and the answers given. It is advisable to follow up in writing

with a summary of the facts discussed on the telephone.

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Any information provided via a telephone reference, as in a written format, should be

substantiated. Information disclosed verbally is as binding and so should be treated with

caution.

5 Requesting references

It is recommended that references are taken up as part of safer recruitment and selection procedures.

5.1 Conditional job offers and unsatisfactory references

As outlined in section 2, Colleges should ensure that any offer of employment is made conditional, subject to receiving two satisfactory references.

Where the job offer is unconditional and the successful candidate has accepted the offer, this forms a binding contract of employment. If the College subsequently wishes to withdraw the offer this will amount to a breach of contract. Where there has been a conditional job offer, for example an offer of employment that is subject to satisfactory references, and that condition is not satisfied, the College is able to withdraw from the contract.

It may be possible for a College to withdraw an offer, or terminate the contract of employment, if unsatisfactory references have been received after the job offer has been accepted or after the employee has commenced work in the role. Care should be taken when interpreting the reference to avoid unlawful discrimination. Colleges may contact the AoC Employment Helpline for further advice regarding unsatisfactory references (see Section 6).

5.2 Confidentiality

References are usually given in confidence and must therefore be received and retained in a confidential place with restricted access. References for unsuccessful candidates should be retained with the recruitment records for six months in order to successfully defend any potential Employment Tribunal claim that may arise. The reference for the successful candidate should be retained on the new employee’s personnel record.

If a person requests to see a reference received about him or her by the College, (as opposed to written by the College) the College will be obliged under the Data Protection Act, to provide access to it. If the College cannot comply with the request without disclosing information relating to another individual who can be identified from that information, then the College is not obliged to disclose it

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unless that person has consented to the disclosure or it is reasonable in any event to comply with the request. Deleting references to the identity of the third party, where this will genuinely protect the identity of the third party, should be considered. Failure to do so, where this is possible, will amount to non-compliance with the Act.

5.3 Reference Request Letter

The quality of the reference received will depend in part on the motive of the referee when answering. If a broad general letter asking no specific questions is sent out, it is probable that a vague reference will be received containing information of limited value. However, if specific questions are asked relating to the job description, the information received will be more useful and relevant. Questions asked should be based on the job description and person specification for the post. The letter should contain the following:

where to send the reference and who to telephone with any questions

how long the referee has known the person and in what capacity

any specific questions relevant to the job e.g. regarding the individual’s suitability to work in regular contact with children

5.4 Interpreting the Reference

An accurate interpretation of a reference may sometimes be difficult if limited information is provided by the referee. For example, some employers may have a policy only to provide a neutral, corporate reference that confirms the dates of employment and position held. The College may press for further details but the previous employer is under no obligation to provide it.

When considering a reference, take into account that it is not for the referee to express a view on the candidate’s potential to do the job that the College is recruiting to. It is for the selection panel/line manager to assess the suitability of the person for the job in question. The purpose of the reference is to provide a factual check of the candidate’s employment history and experience, including factual evidence of their general performance, to help inform the College’s decision regarding the candidate’s suitability for the job on offer.

It is up to the College to determine what constitutes a satisfactory reference. Where a reference is not particularly impressive, the College might decide to reserve judgement and utilise the probationary period to make a full assessment of the employee’s suitability for the job. This should be discussed with the employee, setting clear targets and reviewing progress. Colleges may refer to the AoC guidance, “Probationary Periods: A Guide” for further advice on managing the probationary period.

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5.5 Attendance Records and the Equality Act

Section 60 of the Equality Act 2010 puts tight restrictions on the circumstances in which an employer can ask health-related questions before a job offer is made to an applicant. This has implications when requesting employment references as certain questions may need to be avoided, depending on the timing of the reference request.

It is unlawful to ask questions about an applicant’s disability or health prior to making an offer, unless the questions fall within one of the exemptions identified in section 60(6) of the Act. The exemptions mean that employers may ask relevant questions only if they are necessary for the purpose of:

a) establishing whether the applicant will be able to comply with a requirement to undergo an assessment (e.g. an interview or test), or whether the employer will make any reasonable adjustment for that assessment

b) establishing whether an employee will be able to carry out a function that is intrinsic to the work concerned

c) monitoring the diversity of the range of applicants

d) taking positive action in relation to disabled people (in accordance with the Act); or

e) where there is a requirement to have a particular disability, establishing whether the applicant does in fact have that disability

Both written and oral questions are covered by this and so any reference request that is sent to a referee prior to the offer stage must not ask any questions about the individual’s attendance record.

The legislation does not prohibit health-related questions asked after an offer of work is made. Therefore Colleges can ask questions in a reference request about an individual’s attendance record if the reference is sought after an applicant has been conditionally offered a job. It is essential to ensure that any such questions are carefully phrased, that the individual has given his/her explicit consent to the disclosure of any sensitive personal data by the referee, and that the outcome of the relevant enquiries are not used to discriminate against the applicant. For example, if it is disclosed that a candidate has had 60 days absence in the previous year it will be important to investigate the reasons for this, as there may be a legitimate explanation. A withdrawal of a job offer based on absence that was related to a disability, without adequately considering reasonable adjustments, could lead to a complaint of disability discrimination.

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6 Further guidance

This guide is intended to assist managers and other College staff when giving and interpreting employment references for recruitment and selection purposes.

Further additional guidance can be found via:

Business Link - Providing References

CIPD Factsheet - Selection Methods

Directgov - References and job offers Information Commissioners Office (ICO)

AoC Employment Helpline If you would like further information and advice you can contact the Employment Helpline at AoC on 020 7034 9900 or email employment@aoc.co.uk