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Best practice on employment references

The Employment Appeal Tribunal’s decision in Pnaiser v NHS England and Coventry City Council (2015) has clarified the obligations and responsibilities of employers when giving and receiving references.

In that case, an ex-employer had given a reference as required by a settlement agreement between the parties. The prospective employer offered the role to the claimant, subject to satisfactory references. They later spoke with the recruiter over the phone and provided more detail; crucially they mentioned significant sickness absences (which were as a result of the claimant’s disability) and stated that the claimant would have been unlikely to fulfil the proposed role.

The tribunal considered that the statements were made partly because of the claimant’s disability-related absences. Once this was established, it was for the prospective employer to show that the absences played no part in the assessment of the claimant and the subsequent withdrawal of the job offer. If this could not be established, both the previous and prospective employer could be liable for disability discrimination.

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So what lessons can be learned?

If you’re providing a reference:
• If you are only providing a brief factual reference with dates of employment and job title, explain that this is your standard policy (to avoid any negative inferences);
• If you are providing a more detailed reference, decide whether to include a disclaimer – we can help with this;
• Make sure that a reference does not contain inaccurate or misleading statements and provides a balanced overview of the employee (although it does not have to be full and comprehensive);
• An employee should be aware of any complaints or performance concerns referred to in a reference;
• Any absence details in a reference should comply with your obligations under the Data Protection Act 1998 (e.g. medical records should not be provided as part of a reference without the employee’s consent);
• Take care when commenting about performance, attendance or sickness absence. Seek advice before providing a reference if you think there is a risk of comments being construed as discriminatory;
• If the employee exited under a settlement agreement with a clause on references, any reference provided should accord with your obligations under that clause; and
• Remember that the duty of care owed to former employees can extend beyond references to comments about them in informal emails / telephone calls.

If you’re receiving a reference:
• Be aware that certain statements could be tainted by discrimination. In particular, think about the risks before rejecting a candidate on learning of their previous poor absence record;
• If requesting medical records or a medical examination, proceed with caution when taking any steps based on the results; and
• Ensure that job offers are made subject to receipt of a satisfactory reference.

We regularly advise clients on the provision and use of references. If we can assist, please get in touch.

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