The truth about references
References are one of the most misunderstood areas of employment law, so let’s bust some myths and clear things up once and for all.
What is an employment reference?
A reference is a written or oral statement to a potential employer that helps them to decide if a job applicant is suitable.
What does the law say?
There isn’t really much ‘law’ on references. With one or two notable exceptions, the dos and don’ts come from general common law principles. The basic position is simply that any reference should be ‘fair and balanced’ – true, accurate and fair in all the circumstances.
Myth no.1 – Employers have to give former employees references.
Truth: No they don’t! Only in certain regulated industries, such as Financial Services, is there any obligation to provide a reference. In the vast majority of cases, unless the former employee’s contract says otherwise (very rare), an employer can simply refuse.
Myth no.2 – Employers can’t give a bad reference.
Truth: Total nonsense! It would defeat the entire purpose of references if the employer could only give a positive or neutral one. If a fair and balanced reference would necessarily include negative information regarding an employee’s attendance, performance or conduct, then it is fine to include this. Opinions are also fine, provided again that they are based on facts and part of a fair and balanced picture.
Myth no.3 – Employers can only give ‘basic references’.
Truth: Again, nonsense. However, it is true that these days the vast majority of employers, especially the larger employers, only give factual references detailing, for example, employment dates and position held. This is because those employers wish to avoid risking any criticism for writing something more specific, not because they can’t. Employers can choose to give basic information only, to respond to specific questions or to give detailed personal references – even if their ‘policy’ says otherwise.
Myth no.4 – An employer cannot dismiss an employee because of a poor reference received after they have commenced employment.
Truth: Yep, you guessed it – wrong again. It is perfectly permissible – and indeed sensible – for an employer to offer employment “subject to satisfactory references”. If the employer then receives a reference which is unsatisfactory, the offer can be withdrawn and the employer has no further obligation to the employee. For this reason, it is advisable for employees to wait until they get to the unconditional offer stage before handing in their notice.
How can Paladin help?
For employers, we can help you decide on an appropriate reference policy; guide you as to reference content in unusual situations; and help you defend any allegation or claim arising out of a reference given by you.
For employees, we can help you obtain the right reference from your former employer. We are particularly adept at persuading employers to include favourable references as part of settlement, regardless of what their ‘policy’ might say. And if you have received an unfair reference, we can advise you on the range of claims which you might bring against both your former and prospective employers to ensure that you secure the employment you want and recoup any losses suffered.
What are you waiting for? Make ‘reference’ to us and we’ll get right on it!
Clearing up the myths and bringing clarity to the law.
That’s the Paladin way.