Employment References – The Risks and the Myths

Employment References

It is common place for organisations to request employment references to establish the facts of employment and a necessity for Early Year’s employers. We normally approach the most recent employer, supervisor or educational establishment before other references. It is good practice only to seek employment references once a job offer has been made, not prior to the interview, though this is quite common in schools.

Currently there is no automatic right to have a reference, except in organisations covered by the Financial Conduct Authority. Even in Early Years.

Care must also be taken if refusal to supply a reference could be seen to be discriminatory, for example as a form of victimisation after the individual has complained about discrimination.  However, it has been stated that employers have ‘at least a moral obligation’ to provide references and therefore we would recommend you do.

Employers usually provide references since:

• There may be an express or implied contractual term that the employer will provide a reference. This may arise if it is normal practice to give a reference in that type of work and it would be unreasonable to expect a new employer to take on the employee without one.
• They provide references as standard, so don’t stop.
• A refusal could mean in this particular instance, that adverse inferences are drawn about the employee concerned.
• They may want one back one day, and karma is a b****

Employer references are often said to be of limited use since typically they simply confirm that the candidate worked for the organisation between specific dates. Saying that, I quite like the standard reference, you are getting validation to what you’ve been told.

For example:

Say the application form states Assistant Manager between March 2015 and March 2016.

Then the reference comes back Assistant Manager between March 2016 and May 2016, that’s a lot less experience than you thought!

Many employers fear they may be sued if they offer a negative comment in a reference that can be shown to be incorrect.

Such fears can, however, be overstated.  The key issue to bear in mind is that employers are under a ‘duty of care’ when providing a reference to provide one which is true, accurate and fair, and does not present facts in such a way as to give a misleading impression overall, including by omission.

Sadly there is a risk in providing ‘bare minimum’ references.  A former employer may be exposed to a negligence claim from a subsequent employer if they fail to reveal something which ultimately causes the new employer loss so you must not misrepresent either. Don’t do a bare one because they did something bad. Do a bare one because that’s your policy. If an employee leaves with serious questions hanging over their performance or conduct, or if these concerns arise after the employee has left, the employer should disclose the issues accurately to any prospective new employer.  However, the employer should also be careful to make absolutely clear if the allegations have, or have not, been investigated.

If an employer states on a reference, “if she hadn’t of resigned I would have sacked her…” This would be a problem for the ex-employer, as the employee wouldn’t have known what the employer would have done.

If you need any assistance with references, please don’t hesitate to call us on 01527 909436.