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Avoid the pitfalls of employment references

Practices should approach the provision of employment references with caution, advises Fiona Dalziel.

Have a clear policy on references to ensure consistency (Picture: iStock)
Have a clear policy on references to ensure consistency (Picture: iStock)

Questions about writing and obtaining references abound, and there are risks associated with getting this wrong. Many practices are doubtful about whether they can refuse to give a reference, or wonder whether they can give a glowing reference for someone they will be glad to see departing. What should practices be aware of? And what should they put in place?

What are practices legally obliged to do?

  • Give a reference if the practice has agreed in writing that it will do this – otherwise, there is no legal obligation to supply an employment reference.
  • Give a reference for a worker in a regulated industry – this would apply to a salaried GP or nurse. Consider taking advice on what you should disclose in a reference to a salaried GP or nurse as you may need, for example, to disclose disciplinary proceedings even if they were not concluded.
  • When you are obtaining a reference, only approach the candidate’s current employer if you have their consent to do so

The content of any reference that you provide must be fair, accurate and true. The reference can also be restricted to very basic employment details such as job title and dates employed.

What if the employee wants to see the reference?

A reference that you provide can be treated with confidentiality but one that you receive for a new employee is not. This means that an employee can ask the new employer to see a reference once they have started the new job.

However, while they are employed with your practice and looking for alternative employment, employees may ask to see any references you are providing. This would be a reasonable thing to do, demonstrating transparency, but you must ensure that the content of the reference is fair and accurate.

You may keep a reference confidential. If you do this and a job offer is refused on the basis of the reference the employee may take action and end up seeing it anyway.

What happens if something goes wrong?

If an employee believes they have been given a reference that was unfair, inaccurate or misleading, they may be able to make a legal claim in court.  They would have to demonstrate that the information in the reference was inaccurate and that they suffered a loss as a result, for example if the job offer was withdrawn as a result of the misleading reference and they lost earnings.

An employee can also go to court if the contract of employment says they will be given a reference, but one is refused.

What systems should practices have in place?

  • Agree a references’ policy that is consistently applied for all employees and prospective employees. Make sure you do not say anything discriminatory in a reference or refuse a reference for a discriminatory reason. A policy of not giving references at all could lead to difficulties for current staff who want to move to alternative employment. If you do decide ‘no references’, then you should at least provide a written confirmation that this is your practice policy.
  • Clarify who is authorised to give references and the form they should take.
  • Treat verbal references you take or give as if they were written.
  • Compile the reference with an awareness that you have a duty of care and that it should be true, fair and accurate.
  • Make sure that you have evidence to back up anything you say in a reference. This could include attendance records and disciplinary warnings.
  • Remember that, if you provide a misleading or inaccurate reference on a departing staff member for a new employer, the new employer could make a claim against you.
  • Make explicit to applicants at what point in the recruitment process you will contact referees.
  • When requesting a reference only ask for information about the candidate’s aptitude for the job. It is helpful to include a copy of the job description to help the referee frame their response. It is acceptable to use a simple form to be completed by the referee.
  • Make job offers subject to receipt of satisfactory references
  • Agree a policy on what you do if a referee fails to provide a reference you requested
  • Remember that you should have a probationary period which will protect you in case a candidate’s performance turns out to be unsatisfactory.
  • Have a policy on when references may be refused.
  • It may be that you decide that you will only supply very brief, factual references for all employees. If this is the case, remember to be consistent and not to risk discrimination or unfairness by giving more subjective details for employees you are sorry to see going.

Fiona Dalziel FRCGP (Hon) is a practice management consultant www.dlpracticemanagement.co.uk

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