• International Workplace
  • 6 June 2017

Giving references: the importance of being fair

The importance of giving accurate and fair information when being approached for a reference for an ex-employee has been highlighted by a recent case in which a man claimed a reference given by his ex-employer lost him a job offer.

The Tribunal found in favour of Mr P Mefful, who argued he had been discriminated against after his ex-employer, Citizens Advice Merton & Lambeth, made comments related to his sickness absence in a reference.

During the course of his eight-year employment with the firm, Mefful had two lengthy periods of absence – one in 2009 and 2010 after he and his partner lost a baby, and a further stint in 2012 for shoulder pain and hearing loss in his right ear.

Mefful was made redundant in 2012, at which point his employer ensured in his dismissal letter that “if you require a reference for any future potential employer, we will be pleased to provide one”. However, three years later, when Mefful was offered new employment and his former employer was approached for a reference, the job offer was later withdrawn.

In the reference, Citizens Advice Merton & Lambeth stated it would not re-employ Mefful, later explaining at Tribunal that this comment was linked to his sickness absence. In addition, it had not provided any positive information about the claimant’s time with the firm.

The Tribunal ruled that because the organisation had “failed to provide any favourable information about [Mefful] personally or about his performance… This amounted to a detriment and it created what appeared to be an entirely false and misleading impression of his successful eight-year career.”

Speaking about employers avoiding liability when providing references for ex-employees, Jayne Flint of major UK law firm Shoosmiths advises:

“Generally, there is no legal obligation on an employer to provide a reference for an ex-employee. This is subject to regulatory requirements in certain sectors such as financial services and where the parties have entered into an agreement (such as a compromise agreement) under which they have contractually agreed a reference.

“An employer's policy on whether or not to give a reference needs to be consistent: a decision to provide a reference to some but not all ex-employees could be discriminatory under the Equality Act 2010 (the Act) if this is linked to protected characteristics.

“Where an employer does provide a reference, it has a duty of care to the ex-employee and must take reasonable care in the preparation of the reference which must be true, accurate and fair and not give a misleading impression.

“An employer also has a duty to the recipient of a reference. While the reference does not have to be comprehensive, it must not be misleading through omission.

“An employer may be liable for negligent misstatement where its reference gives an inaccurate impression and in extreme cases it may also be liable in the tort of deceit.”

Online candidate referencing firm XREF has carried out research into the referencing process in the UK, and has found that:

“Although most organisations produce a script or questionnaire to be used for reference checking, the conversational nature of a phone call can often lead to questions outside of the agreed scope being asked. This lack of control puts the organisation at risk and there is always the chance that in trying to build a rapport with a referee or due to inexperience, potentially discriminatory questions may accidentally slip into the discussion.

“The research found that a quarter of respondents had been asked a candidate’s age and 14% had been asked their marital status, both of which are protected characteristics under the Equality Act 2010.

“It is clear that the lack of standardisation and control within traditional reference checking practices is leaving organisations open to risk both in terms of compliance and governance. However, the increasingly litigious nature of society means that people also seem to be reluctant to provide much more than factual data on candidates.

“When asked what they’d do if they received a reference request for somebody who had worked for them asking for their opinion of them, 38% said they’d answer all questions, being careful not to say anything that could be considered negative, and 36% of respondents said they’d answer all questions, stating their honest opinion.

“These responses fit the recent trend of employers only willing to provide neutral references that specify a candidate’s job title and date of employment. It appears people feel that providing detailed references increases risk in terms of libel, defamation or possible negligence claims.

“Making reference checking more consistent, secure and efficient, protects organisations from risk, while also providing more valuable insight on potential recruits.”

Further guidance on the recruitment and selection process can be found in International Workplace’s A-Z guides.