Like so many SMEs, you may have found hiring particularly difficult in recent years: a dearth of candidates, new behaviours like ghosting from those that do apply, having to redesign roles to accommodate hybrid or remote working and now inflation putting pressure on remuneration.
One of the more perennial challenges during the recruitment process is taking references. If you receive any at all, will you just get bare bones – or could they even be misleading? It prompts the question: are references worth the paper they are written on?
To get into the mindset of someone providing a reference, and to help you when you are asked to provide your own, here’s a quick look at what can and can’t be done, starting with an ABC of an employer’s position.
- Action – Is anyone actually obligated to give a reference? The short answer is no (aside from specific industries such as finance). Bear in mind, though, that failure to do so could lead to allegations of discrimination.
- Bias – The above works in reverse: if a new employer feels you gave undue positive bias, this too could form the basis of a legal claim. In a nutshell, you have a duty of care to both new employer as well as old employee.
- Content – Any reference must be accurate and fair. It can be any length – a short, basic reference, or longer, detailed one. Giving limited, fact-based information may not be particularly helpful to others (as you’ll know if you are on the receiving end), but if it feels more comfortable for you then you’re perfectly within your rights.
So, here are some tips and advice on the best approach. As you read them you will see that some are optional and others underpinned by law. First, the do’s:
Lay the groundwork
If you know an employee is leaving and you have the time and inclination, perhaps agree in advance what you might put in a reference. Ask them to refresh your memory about their accomplishments (and do your due diligence in checking the facts). If you’re busy, get them to send a list of bullet points and ideas so you can check (or query) these, then use it as a template.
Be consistent
A consistent approach (perhaps a written template) will help avoid any future allegations. It’s also a good idea to communicate to your team the ways in which you’ll deal with all references. For example you may feel you only have time to offer a basic reference but are happy to follow up with an informal email or phone call.
Say it’s “private and confidential” if you wish it to be so
There is a myth that former employees have a right to access any reference you provide. There is a complex legal background to this. In fact, though, under current law there is an exemption protecting you or a recipient from needing to disclose a reference – so long as it is clearly stated to be private and confidential.
Don’t withhold the facts
By law, you can say you dismissed someone. In fact, if you don’t disclose this it would be misleading. You can also state the reasons why (but are under no obligation to do so). But don’t use the reference as an opportunity to list a load of concerns that you’ve never previously raised with the recipient.
Don’t use coded messages
We’ve previously seen references with tongue-in-cheek comments, attempting to pre-warn new employers. Remember, it’s far better to give no reference than a so-called bad reference. Or again, pre-negotiate the terms – for example, tell them “I can confirm your employment and responsibilities as a basic reference but nothing further.”
Don’t forget the basics
On the other hand, glowing references can sometimes be so creative that they forget the key info. How long did they work for you? What was the nature of their responsibilities? You’ll probably know this already but don’t mention the candidate’s marital status, race, any disability or anything else covered by the Equality Act.
Need advice?
There have even been tribunal cases relating to the content of references. If in doubt about giving or receiving references, we can offer advice on specific cases. Our Advice Line service is an excellent way to receive unlimited advice on such matters as they arise, to ensure you always stay on the right side of the law whilst getting your business done.
