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09th April 2019

Recruitment and the Importance of Employee References

 

What is an employee reference?

An employee reference provides potential future employers with additional information when considering an applicant for a position within their workforce during the recruitment process. References are a valuable tool for employers when recruiting as it gives an insight into an applicant’s employment history from the previous employer’s perspective. ACAS have released further guidance on employee reference do’s and don’ts.

 

Do you have to provide an employee reference?

Generally, there is no obligation to provide an employee reference on request.  A previous employer is only under a legal obligation to provide a reference if the employment is within a certain industry such as those in the care industry who are required to ensure that the individuals that they employ are “fit and proper persons” which is explored further below. If the previous employer chooses to provide a reference, they also have the freedom to choose how much information they wish to include.

 

When are references required?

References can be requested at any stage of the recruitment process and are often requested with the job description itself. It is important to note that a request for a reference from a current employer can only be made with the applicant’s express permission.

 

What to include…

References can be as simple as detailing basic facts regarding the employment, such as start date to end date and job title. However some employers may wish to add further information including absence details, an assessment of the applicant’s character and skills and list their relevant strengths and weaknesses.

 

Can I give a bad reference?

If you choose to give a reference, it must be true, fair and accurate and not contain any misleading or inaccurate information about the previous employee. Under the GDPR, an applicant can request to see a copy of their reference provided to their potential employer. If the employee is able to prove that a reference provided included misleading or inaccurate information, they may be entitled to take legal action and bring a claim for damages against their previous employer. To avoid this scenario, we recommend taking an objective approach when providing references.

From a potential employer’s perspective, if you receive a reference that casts doubt on an applicant’s suitability for a role, or receive no reference at all, you should consider a probationary period within the employment and discuss any concerns with the applicant.

 

Health and Social Care Act 2008 (regulated Activities) Regulations 2014: Regulation 19

Employers in the health and social care industry should be aware that under Regulation 19, employers should be recruiting ‘fit and proper’ individuals to join their workforce. Employers should adopt a strict recruitment process and ensure all checks are carried out appropriately and use employee references to help establish whether the applicant is deemed as suitably ‘fit and proper’ for the role. Successful applicants should be of good character, have the relevant qualifications, competencies and skills, be able to properly perform the required tasks and be registered if required. Even after the recruitment process has completed, the employer has an ongoing obligation to regularly monitor their staff to ensure that they continue to meet all requirements of the Regulation.

Failure to comply with the Regulation can not only be detrimental to the business, but it can result in CQC questioning the fitness of a provider.

 

What to do next…

We recommend that all employers have a policy to help deal with reference requests and outline the information that they are willing to provide. We encourage employers in the health and social industry to use employee references as a useful means of establishing the applicant’s character and employment history in order to comply with Regulation 19.

 

*All information is correct at the time of publishing

Chris King

Employment Law Specialist

Chris is one of our Employment Law Specialists from Napthens Solicitors. Read more

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