Employee references

Past employers are now a little less willing to spill the beans about candidates’ past performance. And your own organisation might, understandably, tread carefully when giving references.

Yet references remain one of the best pre-employment checks your organisation can make. Most companies still use them every time they hire. So it’s up to you, the HR professional, to negotiate this tricky landscape and help make sure the right person gets the job.

When to seek references

It’s common practice to seek professional or character references only after you’ve made an employment offer. Being influenced by references before interview could lead to unfair discrimination.

In longer recruitment processes, you might seek references after the first interview. However, it’s courteous to only contact the candidate’s current employer after you’ve offered them the job.

Checking employee references: written or oral?

Written references are the most commonly used. They offer several advantages:

• The referee has more time to reflect on their answers
• You can provide a template, creating a standardised procedure for your organisation
• Emailed references can be less time consuming than telephone interviews

Telephone references can allow for more flexible, in-depth questioning of the referee. However, you should be aware of the following pitfalls:

• Taking telephone references requires time and interviewing skills
• It can be difficult to confirm you’re talking to the right person
• Detail can be lost when noting down the referee’s answers

Questions to ask in employee references

As we’re about to see, employee references should always be grounded in facts. Things you should always ask about — and are safe to answer on — include the candidate’s:

• Dates of employment
• Role and responsibilities
• Attendance, including sick leave taken
• Disciplinary record

You may also want to dig a little deeper by asking about:

• The candidate’s strengths and weaknesses
• Their reason for leaving
• How well the candidate performed in specific situations
• Whether the referee would rehire the candidate

Providing employee references: keep them factual

Referees might be less inclined to answer questions that are open to interpretation, though. Recent case law shows your organisation could be successfully sued for defamation or malicious falsehood, should your references contain inaccurate information that results in loss.

Then why risk providing references at all? Your organisation has no legal obligation to do so, unless it’s governed by the FCA or certain other bodies.

Many organisations still provide employee references because:

• Employers can’t refuse a reference for discriminatory reasons or as a punishment. Refusing could lead to disputes in these areas.
• Agreement to provide a reference is written into many employment contracts. It’s sensible to include provision for your organisation to still refuse a reference in certain circumstances, e.g. gross misconduct.

Employee References and the Data Protection Act

In the recent case of ‘AB v Chief Constable,’ the High Court ruled in favour of an ex-police officer whose employer reference had included ‘sensitive personal data.’

The claimant’s previous employer had sent his new employer two references: (1) a standard factual reference and (2) another that included disciplinary and sickness absence information. Under section 10 of the Data Protection Act 1998, this was found unlawful.

Advice for avoiding legal issues

You can use the following steps to support former employees with references and avoid legal problems.

• Publish a reference policy covering who can give references, what references can contain and your right not to provide a reference. This can help set organisational standards and manage employee expectations.
• Stick to facts, avoid subjective opinion and make sure every statement can be substantiated.
• Only mention misconduct where it was fully investigated and proven.
• Consider having all outgoing references checked by an HR officer trained in current data protection and other legal implications.