Should standard references be scrapped?
Matt Wort, June 19, 2018
The Oxfam scandal highlighted the unsatisfactory practice that has developed in giving references
It appears that significant issues of misconduct had not been disclosed by Oxfam. But many in HR will have been involved in agreeing a bland, heavily-caveated reference where the reality is the referee would not re-employ that individual.
So what alternatives does an employer have?
Don’t give any reference
Employers across the country are not legally obliged to comply with reference requests. And given there is a duty of care to both the subject of the reference and the recipient, some employers could be forgiven for thinking they'd be best no longer providing references at all.
But such an approach is counter-productive. A reference is a crucial tool for any prospective employer and therefore every organisation needs to play its part, particularly in sectors where the need for satisfactory references from the last employer is crucial in establishing regulatory compliance.
Use a disclaimer
If a clear disclaimer is used case law has made clear there is no liability to the recipient of the reference. So in Oxfam’s case if the reference for its former employee alleged to have been involved in sexual misconduct failed to mention any concerns, a simple disclaimer would have prevented any liability arising. It works legally but is no longer a satisfactory way of safeguarding the vulnerable.
‘Warts and all’ reference
An employer needs to take reasonable care to ensure that the information contained in a reference is true, accurate, fair and does not give a misleading impression (positive or negative).
There is no obligation to provide detail or for it to be comprehensive. Given that claims may arise from the subject of the reference, such as victimisation, whistleblowing and defamation, employers understandably have shied away from going into detail. Providing more detailed references, which set out the fact that an employee has been under investigation at the point when they left their employment, is also risky.
So should employers detail that the employee had an exemplary performance record but was then suspended over potential allegations of abuse?
It might be balanced from the reference-givers perspective, but it is the end of the job opportunity for the subject. In some cases that may be unfair on them. Where conclusions have been drawn that someone should be dismissed for misconduct, it is clear that should be mentioned in the reference. But where the allegations have not been heard at a fair disciplinary hearing, a genuinely transparent and balanced reference will be difficult to implement (unless the wording is agreed).
Some employers ask prospective employees during the recruitment process to disclose the reasons for leaving their former employment, and to warrant that they were not under investigation for or subject to any disciplinary sanction relating to their conduct at the time of their dismissal (and if they were, to provide detail). Such an approach should become a standard part of recruitment practice and the prospective employee should then be required to consent to the prospective employer approaching the last employer; for them to confirm or deny the accuracy of the warranty.
Such an approach avoids the reference-giver having to strike the difficult balance where there are untested allegations, and forces the employee to give an honest and open account. To work well it needs to become sector-wide practice, with former employers agreeing to respond.
In agreeing terms of departure for staff under investigation the reference terms can become a crucial sticking point. Sadly a standard form reference with a disclaimer will be the easy option. Employers giving such references should now make clear that if they are asked about the existence of live allegations or findings of misconduct, the fact that such allegations or misconduct exists will be disclosed.
Matt Wort is partner and employment law expert at Anthony Collins Solicitors