HR Update - using verbal references


References, which are provided? at the discretion of the employer, can be a minefield. Jacqui Mann explores the particular risks associated with verbal references, citing a recent tribunal case

A member of staff suffered from a medical condition – covered by disability under the Equality Act 2010 – that resulted in her having a lot of time off work.

After being made redundant, she applied for a job at another company and was offered the role, but her prospective new employer was not satisfied with her written reference and?so phoned her previous company. The latter would not provide details of the ex-employee’s sickness absence record, but did say it was extensive and that it would be difficult to judge whether she was suitable for the new role.

Following this telephone conversation,?the job offer was withdrawn – although the prospective employer claimed there were other reasons. The applicant brought two claims, one against her former employer and one against?her prospective employer, citing the negative reference and the withdrawal of the offer, which both amounted to unfavourable treatment due to her disability by both defendants respectively. Both claims succeeded.

In the early years sector, there is an Ofsted requirement to obtain employment references for new employees. Often when you receive a reference, it contains only the bare minimum of information and is not very helpful.

More and more employers are requesting a verbal reference. Sometimes it can prove difficult to gain a reference as employers are not legally required to provide one. A verbal reference may give more information about the new employee.

The main problem comes down to the fact that you don’t really know who you are talking to. You need to make sure you are in control of the situation.

Consider:?

? who will provide the verbal reference?

? what questions will you ask; and?

? how the reference will be recorded.

jacqui-mannIf you withdraw a job offer on the basis of a verbal reference, you will need to be able to provide the contents of that verbal reference to an employment tribunal. If it is linked to one of the nine protected characteristics under the Equality Act 2010 then you may find yourself facing a discrimination claim. Verbal references can be helpful, but you do need to be aware of the potential risks involved and their consequences. There is no cap on the compensation for discrimination claims.

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