Last reviewed 2 February 2016

A good reference from a former or current employer can mean the difference between getting a new job or not getting it. It can be worth its weight in gold. For some, the pursuit of a good reference can mean taking up voluntary work simply to clock up the hours and the experience so that the employer can be cited as a referee. However, more and more, employers are declining to give references for fear of claims of falsehood being made against them. Gudrun Limbrick considers if fears of potential reference givers are justified and where this leaves job hunters who have no one to vouch for them.

Taking on a new employee is always a risk. A slick application form and a smooth interview may not reveal problems with attitude or commitment that could potentially plague a hapless new employer for weeks, months and years to come. For this reason, we have long asked for at least two references from a prospective new employee, hoping that at least one will come from the most recent employer. There are no guarantees, but we ask for references in the hope that they may reveal potential problems and act as a warning to a new employer or, conversely, that they reassure us that we have made the right choice and we have a wonderful new recruit.

Few people like writing references. It is often a thankless task which, in many instances, only serves to remind us that we are losing a valued employee to another company. Sometimes, a reference request is the first time we actually hear that an employee is leaving our employ which can be an unwelcome surprise. This begs the question of whether a current employer is always the right person to write a reference anyway. In some situations, a reference request might represent a rare opportunity for an employer to lose a poorly-performing employee — it is then in the employer’s interests to mask the negative aspects of the employee to the potential new employer. By the same token, an employer who does not want to lose the employee to another company (even worse, a company competing in the same market) may be reluctant to point out all the employee’s good points and make them an even more tempting prospect for the potential new employer. It is perhaps no wonder that few people like writing references, employers are regularly in a very difficult position.

The other problem with references is that employers are limited in what they can say about a person. For example, without explicit permission from the employee, an employer cannot mention medical matters on references even when this is pertinent to the employee’s performance at work or absenteeism. Similarly, an employee could object to personal matters being disclosed to a prospective new employer even if both current employer and new employer might feel the matter was of direct relevance to the employee’s ability to carry out the role.

Given all these factors, it has to be asked what genuine value there is in many references. Most of the time, a prospective new employer is, at best, reading between the lines of a reference, trying to gather what real message is being given while appearing to say very little at all. For this reason, references are generally left as almost an afterthought in the recruitment process, a final stage carried out when, to all intents and purposes, both the employee and the employer believe that the deal is done.

In many cases, of course, the deal really is done. Many job offers are unconditional, while references are awaited. In practice, the job offer has not mentioned that the offer is explicitly conditional on checks and the references being of a certain standard. This can mean, for example, that even if the application reveals an untruth (for example, the candidate has stated that they were in the last post for five years and the reference states that it was only for three weeks), unless the job offer explicitly stated that it was conditional on such checks, it cannot be withdrawn at this stage, regardless of whether a lie has been revealed.

It is not, however, the potential unreliability and incompleteness of references that is causing their demise. Some companies are now refusing to give references, other than the most basic of clarifications, for fear of being sued. A full reference, by its very nature is a subjective evaluation — simply one person’s view of an employee’s performance in a specific set of circumstances. When an employer discloses this personal evaluation to another party and this negatively affects the employee’s chance of employment on the basis of the reference being unfair or misleading, the employee can potentially make a significant claim against the employer.

A refusal to give references is leaving some employees frustrated and new employers bemused or suspicious. The law, however, is on the side of those employers who do not wish to give references.

Employers can only be compelled to give a reference if:

  • there was a written agreement to do so, eg it is in the contract of employment

  • the company is in a regulated industry, such as financial services, which has guidelines relating to giving references.

Unless, specifically stated otherwise, a reference can just give the basic details, such as job title, salary and when the worker was employed. It is, of course, of utmost importance that these details are correct and can be backed up with evidence such as the employment contract.

A key issue for employers is consistency. Refusing to give one employee, or former employee, a full reference when references have been given to other employees can be seen as a form of discrimination and can thus leave an employer open to action. It is important that all employees are given the same, and that all references are identical in nature, ie one employee cannot be given a basic reference when others are given full references, one reference cannot avoid the issue of absenteeism when others include this. Any company should have a policy on references, on whether they are given and what detail they include so that the whole process is standardised and fair.

While it is, in some ways, understandable that some companies are choosing not to give full references at all, the consequences of this are potentially damaging. Anecdotally, some companies are giving future employers (including, but not solely, other departments in the same company) the option of phoning for an informal chat about an employee in lieu of a formal written reference. This is a tempting way forward and it is a human approach — a genuine conversation about what it is really like to employ a specific individual. However, a conversation like this can never be repeated to a prospective employee (who has the legal right to see any reference supplied to their new employer), so employees can never know what their former employer has said about them. There may also be the temptation, in such a private chat, to disclose details (such as health issues) that legally cannot be disclosed without the employee’s express permission.

While most of us still take them for granted, the law by no means insists on employers giving their current employees and former employees references, employers do not have to clarify even the most basic of details. There is, however, not just a legal issue, but an ethical one. The clarification of basic details can be of enormous benefit to employees and carry little risk to employers when all employees are offered the same. Without even this courtesy, the whole process of recruitment is going to become that much more difficult.