Providing pub employee references and recruiting

In amongst the gloom of the recession, the job market is becoming slightly more buoyant.

As a result, you may be looking to recruit new bar staff or waiting staff and similarly your employees may start to look for recruitment opportunities elsewhere.

After your interview process you will no doubt seek references from the candidate's current employer or you may be asked by a prospective employer to give a reference. Therefore, you need to know what a reference should state and what it should and should not contain.

Most employers know that they cannot provide a false reference but they do not know much more than this or the legal position surrounding references. This article seeks to give some help.

Employers are normally asked to give references in relation to new employment opportunities but this may not always be the case. An employer may be asked to be a referee in respect of a mortgage, financial or adoption application.

An employer is not legally obliged to provide a reference (unless there is an obligation in the employment contract to do so); however if it does, it is legally responsible for the reference's content.

Standard policy​

Therefore, it is good practice to have a standard policy in place in respect of references: when they should be given, the manner in which they are given and what they can and cannot include.

An employer may decide to adopt a policy only to give a standard reference and if this is so, this should be stated when the reference is supplied. If a more comprehensive reference is given, an employer may want to caveat it with a disclaimer.

Any policy adopted by an employer should be applied in a consistent manner to all employees. An employer should not choose to provide references for some employees and not others: this may give rise to a discrimination and/or a victimisation claim.

It is worth noting that the legal position in respect of references is the same whether a reference is made in writing or orally.

Therefore, before you speak to a prospective employer on the telephone, be clear what you want to say and do not get carried away. It is advisable to make a note of the conversation and keep this on file.

Balanced​

When supplying a reference, an employer owes a duty to both the employee and the prospective employer. Therefore a balance must be struck. In respect of the employee, an employer must ensure that the reference is fair, accurate and not misleading.

It must not contain inaccurate statements as this could potentially lead to an employee bringing a claim for defamation (the act of giving an untrue statement that disparages the reputation of a person in the estimation of right thinking members of society), negligent misstatement (arising when a statement provided is inaccurate) and/or breach of contract.

If an inaccurate or misleading view is presented and an employee is still employed, the employee could resign and claim constructive unfair dismissal. However, if an employer is able to justify its comments and has written evidence to substantiate its view it can make such comments, providing they are fair and accurate.

If there are any complaints or performance concerns that an employer intends to refer to within the reference, it is vital that the employee is aware of these before the comments are stated.

In respect of a prospective employer, an employer is under a common law duty not to give a false or misleading reference. Should such a reference be given, the prospective employer may bring a claim for negligent misstatement.

Asking for a reference in respect of a potential employee is not mandatory. An employer may decide to rely solely on its recruitment process. If a reference is required it is common to make an offer of employment "subject to satisfactory references", i.e. a conditional offer. If this condition is not met, then the offer can be withdrawn.

I think that my employee is guilty of misconduct and I am currently carrying out a disciplinary procedure with them. Should I mention this in the reference I've been asked to provide?​

No. Unless you have carried out an investigation and have reached a conclusion in the disciplinary process, you may be held liable if you provide a reference alluding to the misconduct as it has not yet been proven.

An employer who provides a reference owes an employee a duty to take reasonable care when preparing the reference. If an employer fails to take reasonable care it will be liable if the employee suffers any damage as a result of the reference. You should not disclose information regarding a disciplinary matter until the investigation and disciplinary hearing have been concluded and you are certain your belief is well founded and based on fact.

I made an offer of employment to a potential employee subject to receiving satisfactory references. I have now received these references back but I am not happy with their content. How do I know if they are 'satisfactory' for the purposes of employment law?​

It is for an employer to decide if a reference is satisfactory. Generally, the courts are unwilling to interfere with an employer's decision whether or not a reference is satisfactory. However, to prevent any problems arising in the future an employer should make an offer "subject to the receipt of references satisfactory to us".

In November I offered a job to a new employee. This was due to start in January and it was subject to a satisfactory reference being received. However, due to lots of Christmas party bookings I asked the employee to start early and I forgot to obtain the required references. I have now received the employee's references and they are unsatisfactory. Can I dismiss her?​

If you now decide to dismiss the employee this may mean that you could be in breach of the employment contract. By allowing the employee to start work prior to obtaining the reference you could be seen to have waived the condition that the job was subject to receiving satisfactory references.

It is good practice for an employer to insert a term into the employee's contract to the effect that if unsatisfactory references are received after the employee has started working the employer has the right to dismiss them.