Classic employment traps – references

References are a common employment trap for employers. The problems that arise tend to be high on the ‘irritation’ scale .. and sometimes disproportionately expensive.

Very often, the problem will stem from one simple act: the employer has responded in the form of a questionnaire sent by the new employer. These questionnaires are often constructed in such a way as to require you to answer questions you would rather not answer (sometimes it is better to avoid answering questions such as ‘was this person easy to work with?’ or ‘would you employ this person again?’).

Many job offers are made ‘subject to references’. An unfavourable reference could result in some adverse consequence in the new job or in the individual not getting the job at all. In such circumstances the ‘new’ employer’ will often disclose the unfavourable reference to the ‘failed’ employee in order to get himself off the hook.

If the by-now disgruntled employee could, in the worst circumstances, show that the reference is maliciously false, he could sue: what is more likely is that he will come back and wrangle with the former employer over the reference, and such wrangling is irritating and expensive.

There is no common law right to a reference. There are some situations, particularly where there has been some form of statutorily recognised discrimination, where an employer would be wise to give a reference for a departing employee. And while an employee has no legal right, in some cases refusal to provide a reference has amounted to harassment.

Rule 1 is never answer questionnaires. Rule 2 is if you wish to give a reference, it has to be honest and accurate. If you give information that proves to be false or inaccurate, and a new employer relies on it, you could potentially, be sued.

As always, if you need commercial and pragmatic legal advice, we’re here to help so please get in touch.

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