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 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 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.


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 in Pnaiser v NHS England and Coventry CC [2015] UKEAT/0137/15/LA. 


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 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 has published guidance on this.


There is no obligation on the provider of a confidential employment reference to give a copy to its subject, because of a specific exemption in the DPA 98. However, 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 instead 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. 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, especially if this has a negative impact on the individual concerned, 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. 


What if an employer checks out a job applicant’s digital footprint? 


This is a growing practice. Research in 2010 by job-search website Careerbuilder found that well over half of UK employers regularly used social media websites like Facebook and Linkedin to informally screen applicants, with two in five admitting to changing a hiring decision as a result of material uncovered. 


As the TUC warns in its guidance Facing up to Facebook, employers should not be doing this. It creates a high risk of unlawful discrimination (see Chapter 7) or unlawful trade union-related victimisation (see Chapter 5). Information about ethnicity, sexuality, trade union membership or activity or other irrelevant criteria can easily be revealed online, wholly undermining a fair application process. This sort of practice by an employer providing public services would also be likely to infringe the Public Sector Equality Duty (see Chapter 7). It also distorts the selection pool, unfairly advantaging candidates with a strong public profile. 


The human right to privacy (Article 8 of the European Convention on Human Rights) is probably not infringed where a prospective employer searches someone’s social media profile, unless they hacked into the relevant webpage. This is because courts and tribunals generally treat the worldwide web as a public space. Just because a comment is only made to a limited number of Facebook Friends does not make it private. 


Regarding trade union membership and activity, under section 137 of the Trade Union and Labour Relations Act 1992 (TULCRA), there is a statutory right not to be refused employment due to trade union membership or non-membership (see Chapter 5). Under section 138, TULCRA, there is a statutory right not to be refused access to the services of an employment agency for the same reason. 


Under the Employment Relations Act 1999 (Blacklists) Regulations 2010, it is unlawful to refuse employment or access to employment agency services for a reason relating to a blacklist. For more information about anti-blacklisting laws, see Chapter 5.