Last week ACAS published new guidance on giving references. Most of its content will be of little surprise to HR professionals, the guidance covering when a reference must be given (generally no positive obligation to do so) and what it should say (it must be true, accurate and fair). Whilst there are legally tricky issues arising with references (for example when does an omission become misleading and what impact does GDPR have), in this piece I want to look at the trend towards providing only very basic – “tombstone” – references.
My clients tell me that if they see a reference now which states anything more than just job title and dates of employment then alarm bells start ringing that the reference must be an agreed one being given under a Settlement Agreement. This seems such an indictment of modern society – that we’re so scared of being sued for saying something that is proven to be wrong that we’d rather not say anything very much at all, and that we’d only say something positive about a departing employee if we had to. Whilst I am a lawyer and therefore might be thought to revel in the benefits of an increasingly litigious population, I genuinely don’t think that is a good place for society to be – but I do sometimes have to caution the more ‘exuberant’ of my clients to be sure that they can back up the description they are giving of someone in case it is used against them down the line.
What I don’t see though is how much informal sharing of additional information about candidates goes on behind the scenes. Whether, HR to HR, further details about for example attendance or disciplinary records are disclosed – or subtle comments and tone used to hint that the prospective employer should be careful. The difficulty for the prospective employer though is how it can withdraw a job offer if such information comes to its attention and causes concern.
That is because one consequence of the increased use of tombstone references is the inevitable lowering of the threshold of what amounts to a “satisfactory” reference – receipt of “satisfactory” references usually forming part of a conditional offer of employment. If simple corroboration of what a candidate has said about their employment dates and job title is enough to satisfy the conditionality of a job offer then the ability to withdraw an offer because of surreptitiously gained additional information, without disclosing the existence of it, becomes increasingly difficult.
Is the next step just to abandon the reference-checking process altogether? What value is it actually adding to the recruitment process? A candidate could prove their previous job title and dates of employment to a prospective employer through paperwork. HR teams could save the admin headache of chasing after reference requests which have not been replied to. Because ultimately prospective employers should stand behind their own judgement about whether to offer someone a job or not – and if that judgement proves wrong (as sometimes it will), the probationary process provides the tool to manage that rather than looking to see if a third party can be held responsible.
Finally, for anyone who does check out the ACAS guidance for themselves, I do just want to flag one point that I think could be misinterpreted. ACAS say that an individual can make a request for a copy of a reference to the author of it; the implication is that the author ought then to provide it. Under the old DPA regime there was actually a specific exemption which meant that the author of a reference did not have to provide it to the subject, however it permitted a request to be made of the recipient and they would have to decide whether to disclose or not. Under GDPR and the DPA 2018, personal data can be withheld by either the provider or the recipient where it relates to a confidential reference. Employers would be wise to double-check the small print in their reference templates to make sure that it clearly states that the reference is confidential, although if it’s only a tombstone reference then there ought not to be any issue in disclosing it anyway.
Kirsty Thompson, Partner, works within Devonshires Employment & Pensions Team.