REFERENCES - 19.05.2005

Getting meaningful information

A filtering system

Until recently, a reference was a good way of finding out what a job applicant was really like in a working environment. A quick phone call to their employer could highlight a wide range of shortcomings, which would provide you with an excuse to offer the job to another applicant, e.g. one with a better sickness absence record. However, the increase in tribunal claims by employees for unsatisfactory references means that many employers are now hesitant to dish the dirt. How can you deal with this?

References and the law

There’s no legal requirement on employers to give references. However, if one is given, then a duty of care is owed to the employee to exercise reasonable care and skill in its preparation. This means that there mustn’t be an intention to mislead, e.g. to falsely claim that an employee was a troublemaker out of spite. Equally, references shouldn’t detail complaints made about the employee if they’re unaware of them. Failure to exercise this duty of care will allow an individual to resign and claim breach of contract. Not surprisingly, this has led to reluctance on the part of many employers to give anything other than basic information.

Problems and pitfalls

Whilst understandable, this offers little consolation to you as a prospective employer, as inadequate references could lead to problems. These include the following:

• Sickness absence. You could end up employing someone with a very poor sickness absence record. This may either be due to ongoing ill-health problems or a history of throwing “sickies”.

• Poor performance. A candidate may be a poor performer and have been subject to disciplinary proceedings. If so, it would help to know if procedures had been invoked, for what purpose and the outcome.

• Grievances. An employee may have brought a grievance. Whilst it could have been for a valid reason, being able to identify whether or not you’re dealing with a potential troublemaker would be very useful.

A workable solution

A good way of solving this dilemma is to make a “factual data request”. It asks employers questions which require fact-based answers instead of opinions. Because of this, there should be less resistance to providing you with the necessary information.

Tip 1. Include a factual data request along with the reference. This can ask questions relating to the amount of sick leave taken, as well as an applicant’s history of disciplinary and grievance procedures. However, you should play it safe and get the applicant to sign the form first. If they refuse, make it clear that it could jeopardise the success of their job application.

Tip 2. Be aware of data protection issues. This means that whilst you may prefer a full history on their absence record, the Data Protection Act 1998, requires that any data collected isn’t “irrelevant or excessive”.For this reason, restrict your request to any sickness absence which has occurred in the previous twelve months.

For a copy of our factual data request, visit http://personnel.indicator.co.uk (PS 07.10.06).