References – the new and the old

10 / 09 / 2018

ACAS published new guidance on employment references last week – essentially it is a consolidation of common questions that ACAS receives about references (see here).  It is a useful reminder of the basics e.g. that a reference must be true, accurate and not misleading.

However, what the guidance does not cover can be just as important where employers are concerned.

Employers should bear the following in mind when giving references:

Conditionality of offer or employment contract

If you want to make an offer of employment conditional on receipt of satisfactory references, you need to construct the offer in the correct way so that it can be withdrawn before a contract has been made.

Similarly, if you receive an unsatisfactory reference after the employment has begun, it would be galling to have to give “full” contractual notice because of the absence of appropriate terms in the contract.

Data subject access requests

The new Data Protection Act 2018 has apparently made a subtle change in the rights of data subjects: under the old DPA 1998, a data subject could require the recipient of a confidential reference to disclose it, but not the giver of the reference.  However, under the new law, it seems that both parties can rely on an exemption from disclosure, although this has yet to be tested in the courts.

Special category data

The inclusion of special category data in a reference about an employee (e.g. about their health or sickness absence record) may be unlawful unless they have explicitly consented as it is arguably not “necessary” for the performance of rights and obligations relating to their employment.

Telephone references

Discussing an employee by telephone carries just the same potential liability as giving a written reference, and probably creates more scope for dispute.  Remember that notes made about a candidate when taking a telephone reference may have to be disclosed in response to a DSAR or during litigation.

Financial services firms

Firms that are FCA or PRA authorised must adhere to the rules on giving regulatory references which, for example, specify when a reference must be obtained and the scope of the reference in certain contexts.

Be consistent, be factual

Consistency is key when giving references.   Any departure from the norm, such as the inclusion of information about an employee’s sickness records, or unusually negative comments on their performance, will invite questions and possibly liability.  Equally, expressing a subjective opinion to a third party about an employee’s suitability for a role about which you may know little is inadvisable.