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 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 for negligence if they volunteer unsolicited information about an ex-employee, 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 were not brought to an employee’s attention (TSB Bank v Harris [2000] IRLR 157). Where the person has already left before concerns become apparent, an employer can normally refer to those concerns in a reference as long as they act reasonably, making it clear that the concerns were not 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 of a discrimination claim. This is victimisation and a breach of the Equality Act 2010 (EA 10) (see Chapter 7). In Jones v 3M Healthcare EAT/0714/00, 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 finding out from a referee about 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 (see Chapter 7, page 230). 




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 13: 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), but the 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 includes “personal data” protected by the General Data Protection Regulation (GDPR) (see Chapter 15). Any request for a copy of the reference should be directed at the recipient, not to the giver, of the reference. This is because data protection law contains an exemption for the giver of a confidential work reference (although a reasonable employer may opt to provide a copy, especially if it is largely factual). 


Normal data protection principles apply to references received by an employer from someone else, typically a previous employer. In general, a copy of the reference should be given to its subject unless it is genuinely confidential. The ICO says that: “It is hard to see how releasing factual information about the worker, such as his or her sickness record, or allegations which have been or ought to have been put to him or her by an employer, would breach...a duty [of confidence]” (ICO Employment Practices Code Supplementary Code, page 41). The ICO also says and that employers must consider the impact of withholding reference on future decisions affecting the worker. The ICO’s view is that in general, a reference recipient should give an unedited copy to the worker unless the referee provides “some compelling reason” why it should be edited or withheld. If there is a genuine duty of confidence, the reference recipient may need to ask the referee’s consent before handing it over. 




The GDPR, in force from 25 May 2018, also provides a new right to data portability, in other words, to be given personal data in a structured, commonly used and machine-readable form, and to be able to transmit it to another data controller without hindrance. This new right could be relevant on a change of employer (see Chapter 15: Data Protection).