As an employer, do you bother taking a employee reference when you recruit new employees?

If you work in a regulated industry like the Financial Services Authority, Care Quality Commission or Ofsted for example, you may be obligated to, so take note that the advice below is unlikely to apply in full, and you should check with the regulations applicable to your industry.

Even in industries where there is no legal requirement to obtain references, they can still be useful in your recruitment process and we’d recommend doing so in most cases.

Aside from those regulated industries, do you know fact from fiction when it comes to providing a reference?

Q – Do I have to provide a reference if asked?

Absolutely not. If you don’t wish to give an ex-employee a reference, you don’t have to.

Q – If I decide to give a reference, do I have to fill in the form the prospective new employer has sent me?

No. It is up to you what information you decide to provide. However, whatever you provide must be fair, true and accurate. Many companies have a policy of simply confirming dates of employment and job title and this is perfectly acceptable. It is OK to state factual matters such as live disciplinary warnings, absence levels and the reason for leaving. Finally, a previous employer can give their opinion on suitability for the new role. This includes mention of character and personal attributes, so long as they are factual, fair and reasonable.

Q – So is it true thst I can’t say anything negative on a reference?

No. This is another misconception. If comments are fair, accurate and true, then you can state the facts. For example, a disciplinary warning, poor performance or failure to pass probation.  Subjective and unsubstantiated opinions should not be included, and information provided should not be misleading. Before you ask, if you stick with the above you are very unlikely to get sued for doing so!

Q – Can the new employer sue me if it turns out the employee is no good at the new job and I wrote a glowing reference?

We’re sticking our necks out a bit here, and we sat say no. It’s a bit of an urban myth in the main.  Obviously, we can’t guarantee that a new employer won’t try. But really how many ACTUAL cases of this have you EVER heard of? We’ve not come across one in 20 years of being in HR! If you have been truthful and accurate in your reference, then the responsibility lies with the new employer to have undertaken reasonable assessment and subsequent training.

Q – Can my ex-employee see a copy of what I write on the reference?

Possibly. An ex-employee could make a request to see any information you hold about them. You will no doubt have set out how you would deal with any such requests in your GDPR compliance policies and/or employee privacy notice. We suggest you set out in a company policy who will deal with reference requests and what information you will provide so that you have a fair and consistent approach.

We set out our views here which are consistent with ACAS guidelines.  ACAS have updated their guidance and you can get more information here.

If this article was useful, you might also like this: How long would you expect to wait for work references?

For more about employee references, or anything about HR if you’re an employer in a small or medium-size company, contact us. or call 0845 463 9365.  

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