New ACAS guidance on job references
In today’s exceedingly competitive job market, it is vitally important that employees find ways of differentiating themselves from their numerous competitors.
Additionally, it is equally imperative that employers find the right methods of establishing which candidate would be most suitable for the job. Thus, what better way of resolving these issues than obtaining a good job reference from the prospective employee’s current or ex-employer?
Following a recent survey carried out by the Advisory, Conciliation and Arbitration Service (“ACAS”) which unsurprisingly revealed that almost half of employers expect their job applicants to have relevant work experience (usually demonstrated through job references), Tom Neil (ACAS Senior Adviser) emphasized the importance for job applicants and employers to know the relevant legal requirements surrounding work references. Thus, ACAS launched a set of new guidelines which aim to provide answers and further clarification to some of the most typical questions received on their helpline (the “Guidelines”).
A reference usually consists of important information about a prospective employee (such as basic facts about the job applicant, work ethic and experience, details about the job applicant’s skills, abilities, character, strengths, weaknesses etc.) meant to assist the employer in deciding whether the candidate is suitable for the job. In the absence of a statutory requirement to do so (which only applies to certain regulated sectors), there is generally no obligation on a prospective employer to request a reference from an employee. Similarly, in line with the well-established legal precedent in Lawton v BOC Transhield Ltd (1987), there is no legal obligation on an employer to provide a reference for an employee or ex-employee.
If an employer nevertheless chooses to provide a reference, the Guidelines remind us that such reference must be “fair, truthful and accurate”, and when opinions are provided, the same should be based on facts. Moreover, a reference does not need to be full and comprehensive, but must merely include sufficient details to avoid being misleading. This means that as long as the reference satisfies the aforementioned conditions, it can contain details establishing that a job applicant is not suitable for the role they are applying for or that he/she does not have enough experience of relevant responsibilities etc.
The Guidelines suggest that as a minimum standard of good practice, employers should have a policy meant to assist them with handling reference requests, establishing the acceptable grounds of refusal and clarifying the particular information that should be included in a job reference. Moreover, such a policy should be consistently applied; otherwise, employers could become susceptible to allegations of discrimination or breach of the implied term of trust and confidence.
What prospective employers should consider:
- Employers and recruitment agencies should remember that referees can lawfully refuse to provide references. In such a scenario, a prospective employer should consider whether hiring the job applicant on a probationary period could be used as an alternative means of assessing his/her suitability.
- References might inaccurately suggest that the applicant is suitable for the job. If a prospective employer has any such concerns, it is advisable that it firstly discusses them with the job applicant.
- A conditional job can be withdrawn if the job applicant does not meet satisfactory references.
- Employers must only seek references from current employers with the job applicant’s permission.
What current/ex -employers should consider:
Although employers can generally choose whether or not to give a reference, one should bear in mind that a failure or refusal to do so:
- Could be discriminatory and therefore entitle the employee to bring a claim for discrimination if such failure or refusal is because of one or more of the protected characteristics under the Equality Act 2010.
- May result in a separate and additional claim of victimisation where the current or ex-employee has previously brought discrimination proceedings or done anything under or by reference to the discrimination legislation.
- Could be in breach of any settlement agreements entered into between the employer and the employee since such contracts usually provide that the employer must respond to any requests for a reference in accordance with an agreed form that is usually annexed to the agreement.
What employees should consider:
- Employees should consider waiting for an unconditional offer before handing in their notice.
- Job applicants who are unhappy with a reference can request to see a copy and may be able to claim damages in court if they can prove that it was misleading, inaccurate and resulted in the withdrawal of their job offer.