Employment Law Speed Read – 10/09/18

Acas guidance – employment references

Acas has published new guidance on employment references to provide more clarity for both employers and employees.

The guidance covers key issues, including what can be included in an employment reference, whether an employer can give a bad reference and how to resolve disputes regarding references for both external and internal job applicants.

The common thread of the guidance is that although there is usually no legal obligation to provide a reference, any reference provided by an employer must be true, accurate and fair.

The guidance

Employers can usually choose whether they want to provide a reference and how much information to provide. References can vary in detail and may include basic facts about the job applicant, such as their length of service and job description. Alternatively, a reference may include details about the job applicant’s skills, abilities and character. Additionally, a reference can include answers to specific questions posed by the potential employer.

The guidance emphasises that whilst an employer can provide subjective opinions, these must be based on facts. Additionally, references must not include misleading or inaccurate information and should not include irrelevant personal details.

Acas recognises that in some instances a fair and accurate reference might indicate that a job applicant is unsuitable for the role they have applied for. This may be because the job applicant has inaccurately described their current role, the applicant has inadequate experience or the reference stipulates a different reason as to why the applicant left their current job. The guidance states that in such circumstances, any concerns should be discussed with the job applicant directly. Acas advises that a potential solution may be to offer the job applicant the role on a probationary basis.

Whilst it remains the case that references can be requested at any stage of the recruitment process, the guidance states that job applications should specify whether a reference is required, and at what stage of the process the reference will be requested. A key point to note is that employers must only seek a reference from a job applicant’s current employer with their permission.

Inevitably, a situation may arise where a job applicant is unhappy with a reference. In this case, the applicant is able to request a copy of the reference provided by their employer. Any requests would usually be made in writing to the author of the reference. Alternatively, if the reference is in relation to an internal vacancy, the employee should approach their line manager or the HR department.

As a practical point, the guidance advises employees to consider waiting until they have received an unconditional job offer before handing in their notice at their current job.

Comment

An external job applicant may be able to claim damages if an employment reference is misleading or inaccurate and as a consequence, the job applicant has suffered loss.  It is therefore crucial that both employers and job applicants are aware of the legal requirements relating to employment references.

Employers and HR departments should review the Acas guidance and ensure that their policy dealing with reference requests corresponds with the new guidance.

Acas advises that the relevant policy should detail the information which the employer and their employees can provide. This will enable employers to deal with reference requests fairly and consistently.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.