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Employment References – Avoiding Pitfalls
As part of its recruitment policies and procedures, every practice has a responsibility (under Regulation 18 of the Health and Social Care Act 2008 Regulated Activities 2014) when either giving or requesting references. You need to follow established protocols developed to protect the rights of the employees under Employment Law and the responsibilities of the practice under Health Care Regulations. As part of your selection process it’s advisable for Providers to obtain written references, to avoid being unable to act on a reference due to the risk of a discrimination claim. To withdraw a job offer based on a verbal reference that was supplementary to an agreement with a previous employer, providing a written reference could result in discrimination claim against the ex-employer providing the reference and also against Any Dental Practice if it withdraws the job offer on the basis of the verbal reference.
Petra is disabled and had taken a number of long absences from work that were related to her disability and treatment. She accepted a redundancy offer from the Local Health Authority, which included an agreed, written reference. She subsequently accepted a job offer from Any Dental Practice, which was made subject to satisfactory references. Her previous employer provided the agreed written reference but Any Dental Practice found the wording to be insufficient and took the Local Health Authority up on an offer to provide further clarification over the phone. Any Dental Practice withdrew the job offer based on a negative verbal reference given by the Local Health Authority representative, which included an opinion that Petra was not suitable for the role.
Petra claimed disability discrimination on the grounds that she had been treated unfavourably because of her disability. Mention of Petra’s disability-related absences in the verbal reference was admitted.
The Tribunal held that there was sufficient evidence to conclude Petra’s disability formed part of the reason for the Local Health Authority representative gave the negative reference, and was why Any Dental Practice decided to withdraw the job offer. It found that the Local Health Authority needed to prove Petra’s absences played no part in the assessment that she was unsuitable for the role and the consequential withdrawal of the job offer.
What this means for you
It is possible to encounter conflict between your responsibility to provide a non-discriminatory workplace and your duty to ensure the dental team you employ are suitably capable and competent of providing high quality dental care to your patients. Staffing provisions must ensure that you have sufficient numbers of suitably qualified staff to provide safe care to patients and this relies to a greater extent to staff being present and fit for work.
When providing a reference, consider what a potential employer may need to know, and you must stick closely to any agreement made with the departing employee about any written reference to be employed.
When seeking a reference, you must treat a verbal reference with caution, and be careful not to withdraw an offer if discrimination could be demonstrated as resulting from a negative supplementary reference.