Are Employment References always necessary

With recruitment at an all-time high now is the time you will undoubtedly have new starters joining you, which means you will be seeking references no doubt. If you do not do so already, we always strongly advise that you do take up references, regardless of how you view the candidate in the first instance, you may already know them or have worked with them before. Whilst CV’s can be well written prospective Employees can and do embellish, and at times lie on them, there are many candidates that are excellent in interviews and can sell themselves amazingly well.

It may only become apparent upon commencement to their role that your new starter really is not the person they led you to believe them to be both on their CV and at interview, in our news post we take a look at references, and what you can do as an Employer to protect yourself.

 

 

Can you rescind, or terminate if your new starter turns out to have poor references?

In the first instance, you must ensure that any offer you make is a conditional one, you should confirm this in writing to them, you should add to the letter that the conditional offer is subject to you receiving satisfactory references, it is at that stage, if in receipt of unsatisfactory references, you can rescind the offer, and or terminate due to that reason.

We are offering you our letter that you can use when sending out, this is the reference request to seek a reference from a previous employer.

You can access the letter which is easy to use here: https://hrandyou.co.uk/product/reference-request-letter-for-prospective-employee/

 

 

How should you request employment references?

You should ensure you obtain at least two written references, in most instances, these would be in the form of employment references, from prospective candidates the most recent two Employers.

 

Commonly, there are two types of Employment references these being, basic and detailed, the most common are basic references.

 

A basic reference sometimes referred to as a factual reference is just a short summary employment, it would be in the form of a letter and include areas such as:

 

  • Dates of employment
  • Job title/s held whilst in employment

 

The second type is a detailed reference, Employers are hesitant to provide these, as they can/may lead to issues in the future, we will discuss these in more detail later, a detailed reference which could be provided in the format of a proforma or checklist may include:

 

  • Any of the answers to the questions from your requesting reference
  • Details about the prospective Employees skills, ability, knowledge, and experience
  • Any particular strengths and weaknesses which relate to the suitability for the role
  • Sickness and Absence levels
  • Disciplinary records
  • The reason for leaving

 

 

What if I cannot obtain Employment references?

You may find that employment references cannot be obtained, possibly due to it being the first job, you could then request references from the most recent place of study college or even character references.

When requesting these types of references, you should ask them to provide their personal opinion, this would be in relation to areas including:

 

  • Personality
  • Character; and
  • Suitability for the post

 

Which should also include:

  • Honesty;
  • Integrity; and

 

When you are the person supplying the reference, it is important that references do not:

 

  • Contain misleading information
  • Contain irrelevant personal information about the individual

 

It is important that if you are providing the reference then you must ensure that the details about their role or performance is fair and accurate.

If you are providing an opinion, you must have evidence to support your opinion.

For example, if an individual’s absence record highlights failings, then the reference should not reflect otherwise.

 

It is also worth pointing out that where a family friend, and or relative has been provided as a referee this may be of little use as a personal reference, it is invariably the case that referees of this nature either provide glowing references and or can be penned by the prospective Employee themselves.

 

 

What happens if the Employer refuses to provide a reference?

It is more commonplace for Employers to refuse to supply references at all and have a blanket policy on this, there are exceptions to this, such as:

 

  • If the Employer has a policy in place that they will provide one; and or
  • In particular financial services jobs, are regulated by the Financial Conduct Authority (FCA) or Prudential Regulation Authority (PRA), these are usually for jobs known as ‘controlled functions’.

 

 

What information can you collect, should you retain it and why?

Your Employees and prospective Employees do have the right of access to information held about them by you as an Employer, this is covered under the Data Protection Act 2018 (GDPR), they can access data held by you by making a ‘data subject access request’ (DSAR).

You should have a policy in place that informs not just your Employees of this but also prospective Employees too.

 

 

What should you do if an Employee, or a prospective Employee requests to see a reference?

At this stage you may be wondering do I then need to disclose the references that are sent to me if an Employee or Prospective Employee asks to see them?.

The answer is, not necessarily, there is an exemption that allows you to refuse to disclose a confidential employment reference to an Employee or Prospective Employee if they request to see it. You need not provide access to the reference unless you choose to, the choice is yours.

A word of warning, if you choose to disclose, you should be careful not to disclose information about any third party, such as the referee, unless either they have consented to the disclosure, or it is reasonable to disclose the reference without their express consent.

It may be that you take the decision to disclose an edited version of the reference, for example, this may contain just the factual information and with the referee’s identity deleted, you would in this situation delete personal opinions.

The disclosure of references may lead to discrimination claims being brought to a tribunal where information is/may not be factual, and or misleading, you need to be careful.

 

 

How can we help you further?

We are here to provide full advice, support, and guidance. We can advise in any HR or Employment Law matter: you can contact a member of our team on 0333 006 9489 or [email protected]

 

 

 

 

Disclaimer

This article contains a general overview of information only. It does not constitute, and should not be relied upon, as legal advice. You should consult a suitably qualified lawyer on any specific legal problem or matter.

HR and You Ltd, owns the copyright in this document. You must not use this document in any way that infringes the intellectual property rights in it.  You may download and print this document which you may then use, for your own internal non-profit making purposes. However, under no circumstances are you permitted to use, copy, or reproduce this document with a view to profit or gain.

In addition, you must not sell or distribute this document to third parties who are not members of your organisation, whether for monetary payment or otherwise.

This document is intended to serve as general guidance only and does not constitute legal advice. The application and impact of laws can vary widely based on the specific facts involved. This document should not be used as a substitute for consultation with professional legal or other competent advisers. Before making any decision or taking any action, you should consult a HR and You Ltd Consultant or a member of our legal team.

In no circumstances will HR and You Ltd, or any company within HR and You Ltd be liable for any decision made or action taken in reliance on the information contained within this document or for any consequential, special or similar damages, even if advised of the possibility of such damages.

 

 

 

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