Employee references: putting pen to paper

There was a time when your two referees were among the strongest parts of
your CV. Better than qualifications and details of your school days, these were
the people who could vouch for your abilities as an employee.

But just as the ideal résumé is changing, so is the ideal referee. It’s still
in your interests to hold back referees as long as possible, but you may find
they’re not keen to say much.

For whether you deserve it or not, the days when your former boss puts pen to
paper to write a glowing testimonial are long gone. So much so, that a recent
survey by Employment Law Advisory Services found only one in 10 employers is now
prepared to consider writing a traditional written reference.

No fewer than 69% of the 700 businesses polled now supply only factual
references – a brief line in writing confirming when and how long you worked for
them, your roles and maybe your sickness record. One fifth refuses point blank
to supply any form of reference.

Why? Because for most employers, the fear their comments will end up in a
costly employment tribunal means they’d rather not put their name to anything.
But should they be so afraid of employment law? And what does this mean to
recruiters, and even candidates?

There are two things employers must remember: firstly, their duty of care to
an employee does not end when they cease to work for them. Secondly, where there
is a risk, it is most likely to be for discrimination.

Just as companies are obliged to treat current staff fairly and equally, that
duty of care continues for years after those workers leave. The last thing an
employer wants is to give a worker the feeling they haven’t been given a
reference because of prejudice.

But while there is cause to be careful, there’s nothing to fear from telling
the truth – as long as you treat everyone equally. Let’s say your firm employed
a finance manager called John Smith for four years, but he had 100 sickness a
bsences in one year. If you had to supply a reference for John, there would be
nothing to fear in highlighting his attendance, as long as you stuck to the

What you should not do is refuse to give John Smith a reference, and then
write a glowing recommendation for one of his colleagues. The worst-case
scenario is if a former employee could prove you had acted differently for them
on the grounds of discrimination. If your reference prevented them from getting
future work, the awards against you and your company at a tribunal could run
into six figures.

While the risk of landing in court for recruiters is lower, you may still
require a traditional reference. Without having a raft of testimonials to turn
to, it is much harder to verify your candidate is telling you the truth.

While your skills as an interviewer should help, employing workers on sight
alone will inevitably increase the risk of occasionally taking on the wrong
people. Whenever that happens – and it will eventually – companies can find
themselves quickly out of pocket.

Not only is there the cost of paying for new employees – for however long it
takes to realise their inadequacies – there are the costs of terminating
contracts and beginning the recruitment process for a second time. In the worst
case, a poorly written reference by someone else could land a lazy recruiter
with part of a costly tribunal bill. As far as a court is concerned, both the
recruiter and employer have a duty to ensure that references are fair.

Going back to John Smith, he may have taken 100 days off sick to have a hip
replaced. His former employers could be in trouble for not pointing this out –
and damaging his chances of securing future employment – but also his recruiter
may have slipped up by not checking the cause of his leave.

Taking a few moments to call the source of the reference could save your
company time and money. With that in mind, it is easy to see why so many firms
have become so terrified by the complexities of employment law. But it needn’t
be that way.

While a fifth of the companies ELAS polled felt too scared to write anything
as a reference, it is one of the safest courses of action. It is easy to become
paranoid about employment law but in most cases, it is common sense.

Above all else, follow the two golden rules: stick to the facts; and be fair
and consistent.

In doing so, you will be safe from the law and giving someone else a really
useful business tool – the stamp of approval to hire the staff they need or get
the job they want.

Pam Rogerson is head of personnel for Employment Law Advisory

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