| Paul Kelly & Co. | | Solicitors |
| |
|
|
| | | | | | | | A good reference guide is vital for companies | | | The Sunday Business Post, 18th July 2010
by Anne O’Connell, an associate with William Fry Solicitors | | | Every request for an employee reference should bear the following warning to the employer: ‘‘Lawsuit may follow, regardless of whether or not you respond.”
A person who is unsuccessful in applying for a new job will often look for someone to blame. This may include a former employer who provided a reference.
Equally, if the candidate is successful, but does not match up to the new employer’s expectations, the employer may look to blame the referee for providing a misleading reference. Understandably, employers have become reluctant to give references.
There is generally no legal obligation on an employer to give a reference.
However, such an obligation can arise as an implied term of employment - for example, by custom and practice, whereby employers have agreed, in the past, to provide references.
Furthermore, inferences might be drawn from a refusal to provide a reference, which could in themselves lead to a claim.
Employers may believe that, if a reference is true and accurate, there can be no risk of a claim. Unfortunately, this is not the case.
While a reference should not mislead a new or potential employer, it must be fair to the employee.
This balance may be difficult to achieve. The reference should be considered as a whole and checked to see if any inferences might be drawn from it that may affect the individual’s good name and/or reputation - and thus lead to a defamation claim.
A reference should not contain any inference related to the nine grounds of discrimination under the Employment Equality Acts: gender, age, marital status, family status, sexual orientation, disability, religion, race and membership of the Traveller community.
For example, if the reference refers to an employee’s absences from work, although true, this may amount to discrimination if the absence was due to illness that may constitute a disability, or to maternity leave.
An individual who brings a claim under the Employment Equality Acts only has to establish facts from which less favourable treatment, on one of the nine discriminatory grounds, can be inferred.
This is a low burden of proof. Once this inference of discrimination is established, the respondent or former employer must rebut it and justify the content of the reference or lack thereof.
As protection against discrimination is limited to nine grounds, not all comments will amount to discrimination.
However, they may be deemed to be unfair and in breach of an employer’s duty to an employee if such comments would inhibit their future employment.
For example, mentioning unauthorised absences may not amount to discrimination, but could inhibit future employment.
An employer should also be careful not to use, in a reference, information that could be viewed as ‘sensitive personal data’ under data protection legislation.
This is data relating to a person’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, physical or mental health, sexual life, criminal convictions or alleged offences.
Sensitive personal data may include, for example, records of sickness absence.
Use of such data in a reference without the employee’s express consent may constitute a breach of data protection legislation.
So how should employers deal with a request for an employee reference?
The most important thing is to be consistent and not treat one request differently to another.
Lack of consistency may give a former employee grounds to claim that the different treatment of their request was attributable to one of the discriminatory grounds under the employment equality legislation.
This may arise even where there is merely a delay in furnishing the reference.
A way of keeping the approach consistent is to have a company reference policy in the staff handbook. It could provide that only statements of employment will be given and include a template statement in the policy.
Employees will then have no reason to expect anything more, and the same procedure will apply to all employees.
This type of statement should only set out the position held by the employee and the dates they were employed.
It should include a note that it is the company’s policy to confirm only these details, that it does not provide more substantive or subjective references and that this should not be seen as a reflection on the individual or as any comment on their suitability for a new position.
All follow-up calls should be directed to one person and should be kept in line with the statement of employment and no further information given.
Avoid offering any opinions.
Be aware that notes taken of a conversation may be seen by the subject of the reference.
They can make a request under the data protection legislation for a copy of all data held about them by a potential employer or the former employer. This may include a copy of such notes.
Some new or potential employers, instead of requesting a reference drafted by a candidate’s former employer, provide their own form in which they request specific information about the candidate.
In completing such a form, consider whether it contains questions that could raise discrimination issues or create an unfair impression. If so, revert to the company policy and either avoid completing the form or only complete the parts that are in line with that policy.
Repeat the statement that no inferences should be drawn from the omission of information, but that completion of this form is in line with the company’s reference policy.
A prospective employer who uses such a form should confine the questions to information that is strictly necessary and omit any questions that may relate to one of the grounds of discrimination.
Again, a consistent approach should be taken to reference requirements for all candidates.
For example, insisting on references from two former employers may amount to discrimination on the ground of age, as a younger candidate may not have had two previous jobs.
Accordingly, scope should be allowed to provide a character reference instead. Consideration should also be given as to whether it is reasonable to require an official translation of a reference that is in a foreign language and who should bear the cost of such translation.
While in practice a simple statement of employment has become the most common response to a request for a reference, there is no denying that this is simply not sufficient in certain industries or professions where more substantial information is required by a prospective employer. Undoubtedly, this creates more risk.
An employer’s best course of action to limit that risk is to adopt and implement a clear and consistent policy setting out who is authorised to give such references, what information should be contained in them, in what form they will be communicated.
They should also maintain comprehensive records of all written and oral references given.
It is not easy for an employer tog et every employee reference right when, as they say, there’s nowt so queer as folk.
The best an employer can do is to adopt an approach that is acceptable within the relevant industry and apply it fairly and consistently to all employees.
Anne O’Connell is an associate with William Fry Solicitors |
|
| | | | | | * Irish solicitors may not calculate fees or other charges in contentious business as a percentage or proportion of any award or settlement nor is it our practice to do so. | | | | Paul Kelly & Co. Solicitors: Rye Cottage, Main Street, Leixlip, Co. Kildare, Ireland | | Phone: (01) 624 3624 - (01) 624 2364 | | | Fax (01) 624 4059 | | | Email: | info@pkelly.ie |
|
|
| | Powered by: go2web |
|
|
|
|
|
|
