New guidance issued on employment references

New guidance from the UK Advisory, Conciliation and Arbitration Service (Acas) provides employers with a timely reminder in relation to their obligations when providing and obtaining references which is an area in which employers can easily fall foul if they are not careful.
Considerations for employers providing references
The starting position to remember is that in the vast majority of cases there is no legal obligation for employers to provide a reference. The exception being employers in regulated industries, who are required by law to give references and provide certain mandatory information (for example, Prudential Regulation Authority (PRA) investment firms, banks and insurers).
It is increasingly common for employers to provide simple factual references as standard, which includes only basic facts about the applicant, such as their employment dates and job descriptions. If you are providing further detail (in relation to an ex-employee’s skills, abilities, character etc.), the guidance reiterates that this should be true and accurate, and a fair reflection of the individual.
This is significant as employees can ask for a copy of any reference provided to their potential future employer and can claim damages if they are able to successfully prove to a tribunal that a reference was misleading or inaccurate and led to a job offer being withdrawn. Equally, employers should be careful not to provide a reference that might suggest an applicant is suitable for a role when they are not. This could lead to liability in relation to any loss the new employer may suffer as a result of their mistaken reliance upon the reference provided.
Points to note for employers receiving references

For employers looking to obtain references, it is important to always remember to seek a candidate’s permission to approach their previous employer.
The guidance also highlights the importance of stating in all job adverts and offer letters that any job offer is conditional upon the receipt of satisfactory references. This means an employer can withdraw an offer without being liable for damages if this requirement is not met.
Whilst in cases where an employer is unable to obtain references from the nominated referees, it is always possible to either seek alternative referees or move forward with the job offer, but with a probationary period to assess the candidate’s suitability for the role.
If you have any questions in relation to providing or requesting references, please contact a member of our team.

Tom Fancett

About Tom Fancett

Tom has experience acting for both employers and employees, advising on the full spectrum of contentious and non-contentious matters. His experience includes advising on large commercial transactions, including redundancy and TUPE issues; undertaking buy side and sell side due diligence exercises into the employment aspects for multiple commercial transactions; coordinating multijurisdictional projects; defending Employment Tribunal claims in relation to unfair dismissal, disability and sex discrimination and whistleblowing; advising on day-to-day HR and disciplinary issues; drafting and negotiating settlement and service agreements; and reviewing company handbooks and template employment contracts.

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