It’s always best to take a consistent approach when requesting references to help you avoid any claims of unlawful treatment.
To request a reference for a prospective employee you should:
- Get written, detailed and signed consent from the prospective employee before approaching a referee
- Use a standard reference request letter
- Be consistent in the information you ask for in reference requests
- Make your offers of employment conditional upon receiving satisfactory references
- Avoid knee-jerk reactions to bad references
- Make sure you handle the reference in line with data protection laws.
What to include in your reference request
You should keep your questions as specific as possible in order to get the most meaningful responses.
You’ll want to confirm the employee’s:
- Job title and key responsibilities
- Employment dates
You might also ask the previous employer to provide details on:
- any live warnings
- achievements of note
- weaknesses of note
Finally, you could ask the employer if they have any additional comments.
If you want to ask anything more than this, it’s important to be aware that you must have explicit consent from the employee to ask for ‘special category data’, e.g. racial origin or religious beliefs. You should also only request these details if they have relevance to the role.
It’s also unlawful to seek information about an employee’s health until after a job offer has been made.
Remember, if you’re going to request more information than the basic facts about the employment, this should be your standard process for all requests, so that you can demonstrate fairness.
Requesting references and employment law
When asking for references, you needed to make sure you deal with the information provided in the reference in accordance with GDPR and current data protection law.
This means that you must:
- get proper consent to approach a referee
- comply with your own data protection policy and privacy notices, for example, by making sure you mark correspondence about references as Private and Confidential.
Job candidates hold the right not to be discriminated against under The Equality Act 2010.
You’ll need to take care not to discriminate against a candidate when obtaining references and in acting upon the information you’re given.
Following up a reference
It’s a good idea to telephone a referee in advance to advise them that you’ll be sending a request. This way you can identify quickly whether they will be forthcoming in providing a reference, or whether there may be any difficulties. It’s also good to indicate when you’ll need a response by.
If you don’t receive the reference within the requested timescale, try calling the referee and encourage them to send you the requested reference. You may also want to ask the prospective employee to chase for the reference themselves.
If the reference is still not forthcoming, you may wish to see if they’ll answer some of your questions over the telephone instead.
Also don’t be surprised if the previous employer only provides a standard reference with basic information and refuses to answer any additional questions you might have asked. Usually they’ll indicate in their reference that it’s their standard policy to only give basic information, but if they haven’t include a comment about this, you could follow up with a phone call to check that this is why, particularly if you’re anxious they might be withholding the information for other reasons.
When an ex-employer won’t give you a reference
There’s no legal obligation on employers to provide references for ex-employees, so you can’t insist that they respond to your request for a reference.
If the reference flags poor attendance levels
It’s wise to act with caution before withdrawing any offer on the basis of information given about attendance levels.
If the poor attendance is connected to a disability, for instance, withdrawing your job offer is likely to be deemed discriminatory. In this instance, you would need to investigate and consider any reasonable adjustments to attendance standards before withdrawing the offer.
If poor attendance is raised in a reference, it’s wise to seek professional advice rather than try to second guess whether the employee’s absences are linked to a disability.
What to do if you receive a poor reference?
If you receive a reference which causes you concern about the suitability of your chosen candidate, you need to think carefully before withdrawing your offer of employment.
You should consider whether there are any risks of discrimination, for example, if the negative information relates to a disability of protected characteristic.
Also question how accurate you think the reference is; or if the ex-employer may just be disgruntled about losing a good employee to you.
Weigh up the recruitment costs of starting again against the risk involved in taking on the employee.
Seek further information about the employee from an additional reference. You could also check their Linkedin profile for recommendations.
It is important to remember that the reference will have been provided to you in confidence by the employer and you should not breach that confidence by giving a copy to the employee or revealing what was said without the express consent of the previous employer.
If the poor reference raised questions about ability, is there a way you could test the individual to check? Or you may simply decide to use the probationary period to assess this.
Deciding not to employ someone based on a bad reference
If you do decide that someone is not worth the risk and you no longer wish to employ them, you should let them know of your decision in writing (an email is fine) as soon as possible.
Keep the email short. Simply remind them that the offer was made conditional on the receipt of satisfactory references and unfortunately you have not been satisfied by the reference(s) and are withdrawing the offer.
If you discover the employee has provided false information on their CV or application
In general terms, if the employee has provided false information on their CV or application then you’re within your rights to withdraw the offer.
If you decide to do so, let the candidate know as soon as possible, simply stating that the references you received were not satisfactory.
If you subsequently become suspicious that an employee may have lied about their qualifications or other credentials after they’ve started working for you, this could be gross misconduct and potentially even fraud. If you do find yourself in this situation, seeking professional advice is definitely recommended.
Get HR Support
Consistency, consent and confidentiality are key when requesting references and you should be cautious that any decisions you make based on receipt of a reference do not discriminate.
If you’ve received a negative reference and not sure if you want to proceed with the hire, or you’re worried that withdrawing your offer might be considered discriminatory, our HR experts can help. Give us a call today on 0333 444 0165 or email firstname.lastname@example.org.
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