3. Starting work and the employment contract


References and employer checks



Most employers require a reference before they will employ someone. Young workers starting work for the first time are likely to have references from school or college, plus exam results, but from then on, job offers will generally depend on employer references. 



An employer is not obliged to provide any reference at all, but if they do, they have a legal duty to make sure it is true, accurate, fair and not misleading. If it is not accurate because they have not taken proper care, the worker can bring a negligence claim in the civil courts for any resulting financial loss (Spring v Guardian Assurance [1994] IRLR 460).



Employers are also liable in negligence if they offer unsolicited information about an ex-employee to the new employer without taking proper care (McKie v Swindon College [2011] EWHC 469). 



It is unlikely to be fair and reasonable for a reference to include information about complaints that have not been brought to an employee’s attention (TSB Bank v Harris [2000] IRLR 157). However, if the employee has already left before concerns become apparent, an employer can normally refer to them in a reference as long as they act reasonably, and spell out clearly in the reference that these concerns have not been raised with the employee or formally investigated (Jackson v Liverpool City Council [2011] EWCA Civ 1068). 



A reference need not be comprehensive (Kidd v Axa Equity [2000] IRLR 301). Nor is there a legal obligation to provide a good reference, as long as it is true, accurate, fair and not misleading (Legal and General v Kirk [2001] EWCA Civ 1803).



Although employers are generally not obliged to provide a reference, they will break the law if they refuse because the worker has made a claim of discrimination. This is victimisation and a breach of the Equality Act 2010 (EA 10) (see Chapter 7). In Jones v 3M Healthcare EAT/0714/00, the EAT held that disabled workers who were denied or given poor references by their ex-employer because they had brought discrimination claims were unlawfully victimised.



In Pnaiser v NHS England and Coventry CC [2015] UKEAT/0137/15/LA, a decision to withdraw a job offer after becoming aware during the reference process of periods of disability-related sickness absence was unfavourable treatment due to something arising in consequence of the person’s disability, in breach of section 15, EA 10. 



A refusal to provide a reference, or giving a poor reference, because a worker has made a protected disclosure (whistleblowing) will be a breach of the Public Interest Disclosure Act 1998 (see Chapter 4: Whistleblowing). 



If a job offer has been made subject to a satisfactory reference, the contract will not take effect until a satisfactory reference is provided. Sometimes individuals start work before the reference arrives. Where this happens, the employer can lawfully end the employment contract if the reference does not materialise or is unsatisfactory. 



It is up to the employer to decide whether a reference is satisfactory and the test is subjective (Wishart v NACAB [1990] IRLR 393). However, an employer must not discriminate or victimise someone, for example, because of trade union activities or because they have made a protected disclosure (BP Plc v Elstone [2010] UKEAT/0141/09/3103). 



Blacklisting of workers during the recruitment process because of their trade union activities is unlawful (see Chapter 5: Blacklisting).



There is nothing to stop an employer asking for references from people other than those the employee has nominated (Purvis v Luminar Leisure Ltd t/a Chicago Rock Cafe EAT/1332/99). 



An unsatisfactory reference must be the real reason for ending or withholding the employment, not some other reason, such as the fact that the employee has asked for equal pay (see Halai v Integrated Asian Advice Service UKEAT/0855/03).



Often the first hurdle where a poor reference is suspected is to get hold of a copy. A reference will include “personal data”. Under the Data Protection Act 1998 (DPA 98), individuals have a legal right to a copy of information held about them that is covered by the Act. Confusingly, the DPA 98 takes a different approach to references which have been given and references which have been received. The information commissioner (ICO) has published guidance on this.



In summary, there is no obligation on the provider of a confidential employment reference to give a copy to the reference subject, because of a specific exemption in the DPA 98 (Schedule 7, Para 1). Even so, the ICO says that reasonable employers may choose to supply the reference, especially if it is largely factual. 



References received by an employer from someone else, such as a previous employer, are treated differently. Here, there is no exemption, and normal data protection principles apply. The law obliges the employer to give someone access to personal information about themselves, although not necessarily if it breaches a duty of confidence. For an objection based on confidentiality to apply, the reference content would have to be genuinely confidential, in which case the recipient of the reference may need to ask the referee’s consent before handing it over. 



According to the ICO, recommended good practice is to “provide the information in the reference, or at least a substantial part of it, to the person it is about if they ask for it”. Even if the author of the reference refuses consent, this will not necessarily justify withholding the information altogether, especially if this has a negative impact on the individual, such as stopping them taking up a provisional job offer. Tellingly, the only illustration given by the ICO of a possible justification for not handing over a reference is a “realistic threat of violence or intimidation” towards the referee. Consideration should be given, if necessary, to concealing the referee’s identity unless this is already known, or to only providing a summary of the content. The full guidance is available on the ICO website.