Advisers from The Aikin Driver Partnership answer questions on employment
Q Recruitment seems to be so full of problems these days, should we be seeking references for our prospective employees from their previous employers? And how should we be answering the requests for references sent to us?
A References do have an important part to play in recruitment, so yes, do seek them. Make your offer of employment - and if you allow employees to start before references satisfactory to you have been received, any subsequent employment - subject to receipt of references so your standards prevail. The acceptance of a conditional offer such as this cannot create a valid contract until that condition has been fulfilled.
Asking for a reference will not guarantee you will receive one, however, as there is no general entitlement to a reference. There is a partial exception in financial services where membership of a regulatory body may require one employer to provide a reference to another.
When giving a reference you owe a duty of care to both the recipient and employee concerned. You should ensure the facts you quote are correct and any opinion you express is supported by the facts. This applies to both oral and written references (Cox v Sun Alliance, 2001, IRLR 448 CA.)
It is not easy to decide how far to refer to the employee's misconduct. In Bartholomew v Hackney, 1999, IRLR 246 CA the employee claimed that his employer should not have revealed he was in the process of being disciplined for financial irregularities when he resigned. The court ruled, however, that if his employer had not revealed this he would have been in breach of his duty to the recipient.
Can the employee see his reference? Under the Data Protection Act 1998 you, as referee, do not have to disclose an employment or educational reference given in confidence (Schedule 7). But the recipient could choose to override confidentiality and disclose it (S7).
Finally, do not refuse a reference to a former employee where this would amount to discrimination. As far as sex discrimination is concerned, this will be termed victimisation. But in the major reform of discrimination legislation which will take place next year this will apply across the board.
Employee consultationon redundancy
Q We are a retail chain considering whether to close one of our unp