Job references - Time for legal immunity

Brian Rogers, Operations Director at the Manchester and London-based law firm Rowe Cohen, challenges politicians to find a way out of the ’reference’ dilemma created by data protection and employment protection legislation.

The convention of employers providing confidential references about former employees arose because prudence dictates that the more you know about someone you’re about to employ the better.

What could be simpler? A trustworthy, well-intentioned person, in similar circumstances to you, provides useful, confidential background information about a prospective employee.

Perfectly straightforward.

It was, until the recent data protection and employment protection laws came into force. Between them they’ve created a real dilemma for anyone who is asked to provide a reference. Those who give a report that is seen to be less than ’full, fair and accurate’ could find that it leads them straight to an Employment Tribunal or the Courtroom.

Conversely, if you elect not to give a reference - and there is no legal obligation to do so - you could be accused of discriminating against the employee involved for failing to do so.

Heads you lose - tails, you don’t win.

In doubt? Don’t.

In spite of this possibility, many of the big employers, including banks, insurers and financial institutions have simply abandoned the time-honoured practice altogether and now limit their ’references’ to a minimal confirmation of identity, with a few basic dates and facts.

Alarmingly, even these bare facts can be construed as misleading, too. Stating that someone had, say, fifty-two days sick leave in a given year may mean that you fall foul of the Disability Discrimination Act, unless the absences are put into context.

Many employers are concerned that a positive reference, customarily proffered in exchange for a painless departure, has been interpreted as an attempt to mislead or deceived the candidate’s new employer. This can lead to legal action.

Conversely, an unflattering reference, however accurate, could be given as the reason for an ex-employee being unable to earning a living in future - with equally dire financial consequences.

How else are candidates to persuade prospective employers of their suitability for positions where, say, scrupulous honesty, trustworthiness or sensitivity towards vulnerable people is a factor? Equally important, how are prospective employers to source information about prospective employees?

The answer is with considerable expense and difficulty.

Numerous agencies have sprung up offering to provide negative information about a candidate’s credit rating, criminal convictions and employment history. At a price, you can discover if someone has occasionally slipped into arrears with his or her mortgage repayments, served ’time’ or been caught speeding.

This can be useful information, as far as it goes, but says nothing about positive attributes, aptitudes or abilities. Without references this kind of information simply isn’t available.

Of course recruiters would simply like to know, without fear of recrimination, whether a previous employer has formed a good opinion of a former employee or not but there is no database of people who are guaranteed to be conscientious and honest.

At their own cost and with admirable goodwill, employers have always provided their fellows with what they sincerely believe to be full, fair and accurate information about former employees. It seems to me that the time has come to legally permit employers to do so again, without the risk of falling foul of the data protection or employment protection laws.

The sooner the law is changed the better.

For further information please contact;
Brian Rogers Rowe Cohen 0161 830 4600