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 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 are raised, an employer can normally refer to them in a reference as long as they act reasonably, and spell out 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 are likely to break the law if they refuse because the worker has made a claim of discrimination. This is victimisation and a breach of the EA 10 (see Chapter 6). In Jones v 3M Healthcare EAT/0714/00, the EAT held that disabled workers who were denied or given poor references by their ex-employers because they had brought discrimination claims were unlawfully victimised.

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 page 303).

If an employer has made a job offer subject to a satisfactory reference, the contract will not take effect until that 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, they 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) (see page 303). Blacklisting of workers because of their trade union activities is also unlawful (see page 125).

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 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).