How To… employment references

In an increasingly competitive job market, employer references could mean the difference between employment and the dole queue.

But the subject of references can be a difficult topic to raise and the content of a reference can sometimes be misconstrued or unjustified, with serious consequences for the individual.

Below, Sam Greenhalgh, employment solicitor at Steeles Law, sets out 10 things social workers need to know about employer references:

1. Prospective employers will ask for a reference for two reasons: either to verify what an applicant has said on their CV, application form or during an interview, or to gain an opinion on the applicant. They will often make an offer of employment conditional on the receipt of satisfactory references. Otherwise the offer of employment could be withdrawn or further references requested.

2. An employer does not have a general legal duty to provide a reference, but it is rare for them to refuse. In some cases, there may be a regulatory or contractual duty for the employer to provide a reference. Check what your employer’s standard practice is in relation to references so you know what you are entitled to.

3. The law relating to employee references applies equally to agency and temporary staff. However, some employers may have a policy of not providing references for agency staff, in which case you will have to ask the agency to provide them.

4. If an employer provides a reference, they will owe a duty of care both to the employee and to the recipient for the contents of that reference. A reference must be true, accurate, fair and must not give a misleading impression. However, it does not have to be full and comprehensive.

5. References are usually in written form but can be given orally. It is best practice to provide a written reference to ensure it cannot be misinterpreted or misunderstood by the recipient. With oral references it can be much harder to prove what is said and therefore harder to prove whether the reference was true, accurate, fair and not misleading.

6. A prospective employer may ask a series of specific questions, which the former employer will need to answer. Otherwise, it is up to the employer to decide what information to provide. This may include the employee’s length of service, positions held and competence in the job, honesty, time-keeping, absence record and reason for leaving.

7. If you suspect you are at risk of being provided with a negative reference, it might be a good idea to discuss your concerns with your line manager and take steps to mitigate the effects of any negative comments. For example, you could explain to the prospective employer the reason for any lengthy sickness absence and state that the condition is not ongoing and is unlikely to recur, provided this is the case.

8. In this situation you could also consider asking a prospective employer to take into account additional references to those requested, such as testimonies from tutors or personal referees.

9. To avoid potential disputes over the content of references, be aware that employers often limit the content of the reference to the dates of the employee’s employment, their job title and a brief description of the duties the employee carried out. Some employers also include legal disclaimers when providing a reference seeking to limit any liability they may be incurring.

10. You have the right to make a data subject access request, in writing, under Section 7 of the Data Protection Act 1998, to see a reference that a former employer has provided. Such a request should be made to the recipient of the reference, not the employer who provided it. Further information is available on the Information Commissioner’s website.

If you consider that a reference is not true, accurate and fair or gives a misleading impression and you have suffered a loss, such as the withdrawal of a job offer, as a result, then you should seek legal advice. You may be able to pursue a claim for negligence against the provider of the reference.

What do you think? Join the debates on CareSpace: Bad reference = no job? and Advice needed, refusal of reference

Keep up to date with the latest developments in social care Sign up to our daily and weekly emails