CIPD - References

Recruitment and talent management

Originally issued in January 1999; latest revision March 2007

This factsheet gives introductory guidance. It:

considers the risks in providing references and how to manage them
explains the key legal aspects of providing and using references
includes the CIPD viewpoint.

The purpose of references

The purpose of references is to obtain information about a candidate’s employment history, qualifications, experience and/or an assessment of the candidate’s suitability for the post in question. Prospective employers may seek information on matters including length of employment, job title, brief details of responsibilities, abilities, overall performance, time-keeping and reason for leaving. It is estimated that one in eight people exaggerate or falsify their qualifications! CIPD does not recommend that references should collect any subjective information as to the applicant’s suitability for the job on offer.

Employers should establish controls regarding the provision and approval of references. In many organisations, it is customary for the HR function to process and vet all references given. Where necessary, employers should obtain legal advice to prevent problems arising.

Should references be used?

This is a moot point. Some employers believe that references should only be used when there is a real danger that candidates may misrepresent their actual identity and that of their previous job and this cannot be verified by other selection/assessment methods. However, the majority of employers seek references for all prospective employees as a matter of routine. CIPD recommends that references should always be taken up to check facts but that only factual or verifiable data should be relied upon.

Choosing referees

Generally, references are sought from current and former employers, and sometime personal referees as well. If the applicant has not been employed, personal referees may be the only ones available. But information from personal referees may be valueless as, being selected by the applicant, personal referees are always likely to be complimentary.

When to approach referees

References are most frequently sought after the applicant has been given a ‘provisional offer’.

Reference requests can also be processed while interviews, assessments etc, take place and the information then contributes to the selection decision, prior to any offers being made. Our 2006 Recruitment, retention and turnover survey¹ found that 50% of the organisations take up pre-interview employment references as one of the methods they use to select applicants. However, employers must remember that seeking references at an early stage can jeopardise an employee’s career if their current employer is unaware of their wish to leave. A solution is to approach former employers first and only approach the current employer at the final stage if necessary. Naturally, this will not work in those instances where applicants have only had one employer.

Obtaining references

Consider what information is needed and who best to approach. Research shows that the level of response for reference requests can vary from 35 to 85%. Whether you speak or write to someone in the HR function or a line manager will depend on the type/level of job and the skills/attributes required. References are normally obtained in writing or orally (generally by telephone rather than face-to-face). Face-to-face meetings do take place but are normally reserved for very senior, key positions.

Written references

Most companies will request references to be submitted in writing, either in the form of an 'open' unstructured letter or by use of a standard form. Requesting written references provides referees with more time to reflect on the questions, the wording of answers and on the information (if any) provided about the job vacancy. It is important that any reference request is marked 'private and confidential' for the attention of the named referee.

References by telephone

Telephone can be a faster and more reliable way of obtaining a reference than through the post. Taking up oral references requires interviewing skills, time and resources (frequently reserved for senior/key posts). You should:

ensure you are speaking to the appropriate person in the organisation
ask factual questions only
be sensitive that the amount of data a referee is prepared to give may be limited
evaluate the response.

It is important that accurate records of the telephone reference are made.

Providing references

Case law has resulted in a cautious approach from people giving references. Generally all data given in a reference should be based on fact or capable of independent verification. As a guide, references should be fair, accurate and not give a misleading overall impression of the employee.

Referees should be very cautious about giving any subjective opinion about an individual's performance, conduct or suitability, which they cannot substantiate with factual evidence.

Reliability and validity

Employers should remember that because a job applicant is being asked to give the names of referees, they are highly unlikely to choose anyone who will give them a bad reference and therefore potential inaccuracies may arise. Bad references are very rare! And previous employers may have gone out of business, be disinterested and incapable of judging performance or communicating their opinion. Where a reference appears inadequate or incomplete, prospective employers should check, preferably by telephone, to probe further.

References tend towards ‘leniency errors’ and, like interviews, offer a great deal of scope for both direct and indirect bias. Employers can improve validity and reliability by using a highly-structured rating form. References tend to be more reliable if:

the old and new job are very similar in content
questions are based on job analysis
facts, rather than opinions and evaluations, are requested
where personality traits have to be measured, they are defined and specific examples requested
relevant information about the job vacancy was provided for the referee
the opportunities the referee has had to directly observe the employee are identified.

The legal position

There is no detailed legislation specifically designed to deal with the provision of references to employees in all occupations. However the following legislation is relevant.

The Unfair Contract Terms Act 1977 may apply to attempts to disclaim liability for a reference.
The Financial Services and Markets Act 2000 Act applies to the provision of references, and employers engaged in the provision of financial services governed by this Act are bound to supply references.
The Data Protection Act 1998 may also apply to the processing of information in the provison of a reference.

It is now clear that discriminatory and certain detrimental acts committed by any employer after termination of an employee's contract are within the remit of the discrimination legislation and the detriment provisions of the Employment Rights Act 1996. The following anti-discrimination provisions are all relevant to the provision of references:

Disability Discrimination Act 1995
Disability Discrimination Act 1995 (Amendment) Regulations 2003 (SI 2003/1673) (due to come into force on 1 October 2004
Sex Discrimination Act 1975
Sex Discrimination Act 1975 (Amendment) Regulations 2003 (SI 2003/1657)
The Race Relations Act 1976
The Race Relations Act 1976 (Amendment) Regulations 2003 (SI 2003/1626)
Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660)
Employment Equality (Sexual Orientation) Regulations 2003 (SI 2003/1661)
Employment Equality (Age) Regulations 2006 (SI 2006/1031).

Legal considerations

A brief overview of the key legal considerations is given below. CIPD members can find out more on the legal aspects of this topic from our FAQ on references in the Employment Law at Work area of our website.

Go to our References FAQ

Commencement of employment

In an offer letter to a successful applicant, a prospective employer should state that this is a ‘provisional offer subject to references satisfactory to the organisation being received’.

If an employee starts a job before the receipt of their references, the requirement to obtain satisfactory references may no longer be a condition of employment. The employee will have the same rights in relation to wrongful dismissal (ie breach of contract), statutory dismissal procedures or any form of discrimination, as any other employee.

Employers’ liability to provide references

An employer does not have a common law duty to provide references for a serving or past employee unless there is an express or implied term to that effect in the employment contract. However, it is rare for an employer to refuse - partly because it is established practice to provide a reference and a refusal could result in adverse consequences for the employee. Furthermore, a leading judge has indicated that although there may be no legal obligation to provide a reference, there is a moral obligation to do so (Lord Slynn’s judgment in Spring v Guardian Assurance plc and others [1994] ICR 596, HL).

Negligence

If a reference is provided by an employee, the main legal risk lies in the law of negligence. An employer will be liable if loss results from the employer's failure to exercise reasonable care in the preparation of a reference. The leading case is Spring v Guardian Assurance plc [1994] IRLR 460 which demonstrates that that the author of a reference owes a duty of care both:

to the person about whom it is written, and
to the recipient of the reference if the reference was carelessly favourable.

The reference must not give an unfair or misleading impression overall, even if its discrete components are factually correct.

There may also be a 'contractual duty' to provide a reference where:

where it is 'natural practice' to require a reference from a previous employer before offering that type of employment, and
where the employee could not expect to enter that type of employment without a reference.

Defamation

If a reference contains a false or unsubstantiated statement that damages the reputation of a former employee, he or she may be able to claim some damages for defamation. But the risk is slight, since there is no liability for libel if the employer believes the information in the reference is correct and given without malice.

Disclosure of convictions

Under The Rehabilitation of Offenders Act 1974 (ROA) an applicant is not obliged to give information regarding any previous convictions (‘spent’ or otherwise). Similarly, a referee is not required to disclose a ‘spent’ conviction. However, if an employer asks a direct question such as ‘do you have any criminal convictions?’ an incorrect response could amount to ‘negligence’. A number of professions are excluded from ROA, including the medical, legal and accounting professions. For further information see our factsheet on Employing people with criminal records.

Go to our factsheet on Employing people with criminal records

Discrimination

Following a House of Lords landmark ruling (Rhys-Harper v Relaxion Group plc [2003] IRLR 33, HL), an employee who is given a poor reference because of their age, race, sex, sexual orientation, religion or disability may be able to bring a claim against their former employer.

Data protection

Key implications with regard to references include:

Requests to view references: Under the Data Protection Act 1998 it is no longer possible to guarantee that a reference will remain confidential. The author of a reference may stipulate that it is confidential, and need not show it to the employee. However, employees can ask their new employer for a copy of the reference which may be discloseable if it is proper to do so, having balanced the rights of the author, any other person mentioned in the reference, and the employee. Ideally steps should be taken to obtain the consent of the author.
Requests for information on an employee’s sickness/medical records: Some reference requests refer to sickness absence. Data relating to an employee’s medical condition is classified as sensitive personal data and employers therefore need to take care to obtain an individual’s consent when dealing with such requests.

CIPD viewpoint

CIPD recommends that employers should always take up references to check facts such as qualifications gained and previous jobs held, etc. However, we do not recommend that employers rely on subjective opinion with regard to competence or performance.

References

1. Our annual recruitment, retention and turnover surveys are available at http://www.cipd.co.uk/surveys

References

The purpose of references

Should references be used?

Choosing referees

When to approach referees

Obtaining references

Written references

References by telephone

Providing references

Reliability and validity

The legal position

Legal considerations

Commencement of employment

Employers’ liability to provide references

Negligence

Defamation

Disclosure of convictions

Discrimination

Data protection

CIPD viewpoint

References

Further reading

Books

Journal articles