Busting the myths of employment references

References are like death and taxes – sooner or later, we all have to deal with them, even though we’d rather not. Whether you’re the subject, on the receiving end, or having to provide one, they can be awkward! References can be a real bone of contention, in my experience.

They are often of very limited value, as employers can be so terrified of the potential litigious consequences of saying something negative, that they sugar-coat even the worst offenders to make them sound like Employee of the Year. This is not very helpful if you choose to hire someone on the strength of that recommendation! But auditors want to know you have checked references as part of your risk management processes, so you should get them anyway, even if they’re as much use as a chocolate teapot.

So let’s clear up some of the confusion on references and what you can and can’t do with them!

But first, a cautionary tale. 

I found myself in a particularly frustrating situation early on in my HR career when a mortgage provider contacted me by phone regarding an ex-employee. We then discovered that not only was the ‘ex’ claiming to still be a ‘current’ employee by falsifying some payslips to show recent dates, but also that he’d changed the salary amounts to make it look like he was earning a lot more than he had been! What a rogue! Funnily enough, he didn’t get the mortgage… Then a few weeks later a reference request for him landed on my desk. Asked to rate his integrity, I felt it only right to tick the ‘poor’ box – otherwise it was my own integrity that would have been dubious.

However, that wasn’t the only thing to land on my desk – some weeks later, there was a letter from the rogue ex, putting in an official grievance against me for scuppering his chances of employment by giving a bad reference! Not only that, the company had an attack of the vapours thinking that they may be facing a claim and told me to write him a suitably grovelling letter of apology, promising never to do it again. Cowardly employers – sadly not that uncommon!

Once I’d picked my chin up off the floor (on both counts), I flatly refused to apologise or withdraw the reference – partly because I would rather staple my eyelids together, partly because I didn’t want some unsuspecting company ending up with this guy on their staff,  but also because I was confident that the rogue ex didn’t have a case.

It’s a common misconception that you can’t give a ‘bad’ reference. That is only true if by ‘bad’, we mean deliberately malicious, misleading or blatant porkies.

Be factual when providing references

If a reference is accurate, objective and given in good faith, then it can still be negative (for example, facts such as poor attendance records, poor performance assessments, current disciplinary info etc.)  Bear in mind that if you don’t tell the truth, the whole truth and nothing but the truth, somebody somewhere will be disadvantaged. So honesty is always the best policy.

If then you are asked for a reference for someone who was not a model employee, client or personal acquaintance, be as factual and impartial as possible. Be descriptive, rather than judgemental and stick to facts rather than your opinions. If anything could be unjustly construed as negative, then include some explanatory notes. For example, if someone had 20 sick days in a year because they were hit by a bus and were in hospital for a month, make sure it’s clear that it wasn’t because they had a day off every two weeks with a cold/migraine/stomach bug etc.! If in doubt, just stick to basic facts like dates employed, job title and so on.

Remember that just because you are asked a question, or there are boxes to complete in a form, you are not obliged to provide that information. You can just give the details you feel comfortable with and ignore the rest.

Referees have a dual duty of care

Not only to the person who is the subject of the reference, but also to the recipient. It has been known for employers to make a claim against previous employers for giving a falsely good reference, causing them to hire someone who is actually rubbish! So if you’ve been on the receiving end of a reference about someone, which lulls you into a false sense of security, you could potentially have a claim against the referee.

After all, you’ve taken the person on in good faith, so if they turn out to be a liability in some form or other and end up costing you a fortune in lost work, costs of training or additional recruitment, or if they do a runner with half of your client base and the contents of the till – someone has to take responsibility for that!

But what if you’re the subject of the reference and feel that you’ve somehow been stitched up? (Maybe your ex-boss was a maniac who was jealous of you and decided to ruin your career for ever more with a bad reference, or whatever – I’m sure it happens.)  First, remember that whoever supplies the reference doesn’t have to show it to the person they are providing it for, so there’s no point in badgering the ex-boss to give you a copy of what they’ve sent. It’s a moot point however, since whoever receives it does – if you ask to see the references they’ve received about you, that is a Subject Access Request under the Data Protection Act.

If you see a reference about you and you are convinced you’ve been the victim of a malicious reference, you can potentially put in a claim against the referee if you can show that the reference was not given in good faith, and/or that it was deliberately misleading. Start with a formal grievance against the referee (even if you’ve left, you can still do that), and make it clear you’re prepared to go to a tribunal if necessary – after all, they could at be responsible for you being unemployed!

To avoid all of this, you can ask your employer for a reference that you have agreed in advance, so that you don’t end up with any unpleasant surprises. If you’re giving a reference, don’t fall into the trap of thinking that if you have a nice chat on the phone , it doesn’t count – after all, it’s a pretty safe bet that the person at the other end of the line is writing down everything you say! There is no ‘off the record’, even if you say it is.

So the golden rule is

Only give information you are comfortable giving, are confident is the truth, and can back up with evidence if required. That way you never need worry about a legitimate claim or complaint. And as Judge Judy says – if you tell the truth, you don’t need a good memory!

Tara Daynes

Tara Daynes FCIPD, MSSP, is a fully qualified freelance HR and training consultant with 16 years’ post-graduate experience. She is a qualified Employment Law Paralegal & a registered Investors In People adviser/assessor. Specialising in employment law & business training, Tara helps organisations improve their business performance through how they manage & develop their staff. This includes start-up HR functions for SMEs, writing people management policies and procedures and staff handbooks, and providing training for line management and staff on key issues. Email taradaynes@gmail.com or visit www.taradayneshr.com for more information. Connect with Tara at Linked In, Tweet her on Twitter, and like her on Facebook

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