Sophie Clifford, a specialist employment barrister with over 20 years of legal experience, comments on some of the most common misunderstandings regarding the legal aspects of reference checking.

Common misunderstandings regarding the legal aspects of reference checking

In a personnel selection procedure, reference checking is usually the only selection method where the information about the job applicants comes from someone other than the job applicants themselves. 

Although many would agree that people who have previously worked with an individual can provide valuable information about that individual, many recruiters and hiring managers hesitate to conduct reference checks because they think former employers are restricted by law from saying anything of value.

To help us clarify the legal aspects of reference checking, Refapp took help from Sophie Clifford, a specialist employment barrister with over 20 years of legal experience. In the following paragraphs, Sophie comments on some of the most common misunderstandings regarding the legal aspects of reference checking.

Misunderstanding #1: Referees Are Only Allowed to Confirm the Job Title and Dates of Employment

A common misunderstanding is that, during a reference check, employers are only allowed to confirm the job title and dates of employment of a former employee. Thus, reference checks can only be used to confirm the information provided by the job applicants. However, this is an inaccurate assumption. A reference check can also include information about work performance and whether a former employee was dismissed. Former employers are allowed to provide such information as long as the information they provide is true, accurate, and fair.

Misunderstanding #2: Referees Who Make Negative Statements Are Likely to be Guilty of Defamation

Defamation refers to a wrongful statement that injures a person's reputation. According to Sophie, the concern about defamation lawsuits is often exaggerated. In most reference cases, a defamation claim would require demonstrating an element of malice as well as falsehood. A reference based on an honest belief (notwithstanding any carelessness, impulsiveness, or irrationality), given without malice, will not lead to a defamation claim. Even if the statement is untrue, as long as it was given in the belief that it was true, this will not lead to a defamation claim.

Misunderstanding #3: Referees Who Make Negative Statements Are Likely to be Guilty of Negligent Misstatement

As mentioned above, referees are allowed to provide valuable information about job applicants (e.g., information about work performance and unauthorised absence) as long as the statements are true, accurate, and fair. It is when a referee is negligent and provides misleading information that the referee may be liable for negligent misstatement. According to Sophie, the legal cases that have dealt with negligent misstatement often concern unresolved conduct issues. The outcomes of these legal cases (e.g., Bartholomew v. LB Hackney, 1999; Kidd v. Axa Equity & Law Life Assurance Society, 2000) show that a reference is usually considered fair as long as it gives enough context for negative comments and is not in some way misleading.

Thus, to ensure that the information provided in a reference check is fair, referees can use past performance appraisals as a basis for the statements made, as long as there is a proper and legitimate basis for the opinions in the performance appraisals.

Legal Considerations When Asking for a Reference

The paragraphs above deal with the legal aspects that are relevant when someone gives a reference. Below, we provide information on legal aspects worth considering before asking for a reference. We also describe how Refapp is designed to help recruiters and hiring managers comply with these legal requirements.

Data Protection

The Data Protection Act (DPA) 2018 is the implementation of the General Data Protection Regulation (GDPR) in the United Kingdom. The DPA sets out how personal data must be collected, handled, and stored. Since reference checks deal with personal data, several rules must be followed to protect people's privacy. For example, candidates and referees have the right to be informed about the collection and use of their personal data. With Refapp, when a candidate enters the referees' contact details, you can automatically send information to the candidate about your personal data processing. In the same way, the referees will automatically receive information about your personal data processing when they perform the digital reference checking.

According to the DPA, personal data must be handled in a way that ensures appropriate security, including protection against unlawful or unauthorised processing, access, loss, destruction or damage. With Refapp, all information is stored encrypted with the highest security. The information is also automatically deleted after a given time. In summary, Refapp is designed for you to feel confident that the personal data is handled with care.

Discrimination

According to the Equality Act 2010, employers are not allowed to discriminate against job applicants based on their:

• Age

• Disability

• Gender reassignment

• Marriage and civil partnership

• Pregnancy and maternity

• Race

• Religion or belief

• Sex

• Sexual orientation

The Home Office (2022) has issued a code of practice to help employers avoid unlawful discrimination in the selection and recruitment process. According to this code of practice, employers can avoid unlawful discrimination by ensuring that the personnel selection is made on the basis of suitability for the position. To determine what should be examined to assess the suitability of the job applicants, employers should begin by conducting a job analysis (Clifford, 1994).

A job analysis is a process of defining the tasks and activities related to a particular job position and determining what skills and competencies are needed in order to perform that specific job. Based on the job analysis, you can ask the referees questions about the candidates' work-related behaviours. By conducting a job analysis and asking behavioural-based questions about the candidates, employers can mitigate the risk of gathering information that could lead to discrimination. To ensure fair and accurate reference checks, Refapp provides questionnaires that are based on job analyses and contain behavioural-based questions that are supported by scientific studies. 

Benefits of Conducting Reference Checks

Now that we have covered the legal aspects of reference checks, let us talk about the benefits of conducting reference checks.

Avoid Negligent Hiring

Negligent hiring is when an employer hires an individual without conducting the appropriate background checks, and that individual causes problems to the organisation, employees, or customers. The most effective way to avoid negligent hiring is to conduct investigations on job applicants before a hiring decision is made. By conducting reference checks, you can get valuable insights from people who have actually worked with the job applicants and thus reduce the risk of hiring someone who causes harm to others.

Predict Work Performance

Several studies (e.g., Hedricks et al., 2013; Taylor et al., 2004; Zimmerman et al., 2010) have investigated how well the information gathered through reference checks can predict job applicants' work performance in future organisations. The results of these studies show that when questions are asked about the job applicants' work-related behaviours, the information provided by the referees is a valid predictor of work performance. To ensure you get the most out of your reference checks, Refapp provides questionnaires that are based on these scientific findings.

Get a More Complete Picture of the Job Applicants

As mentioned above, reference checking is the only aspect of a personnel selection procedure where someone other than the job applicants themselves provide information about their work-related behaviours. Thus, reference checks can add information that helps recruiters paint a better picture of the applicants. For example, during a job interview, few applicants would say that they are usually late for work. Such information may only be gathered by contacting former employers.

We hope you found this article insightful! If you want to learn more about the potential of reference checking, visit Refapp, start a free trial or get in touch! 

References

Bartholomew v. LB Hackney. (1999). IRLR 246.

Clifford, J. P. (1994). Job analysis: Why do it, and how should it be done?. Public Personnel Management, 23(2), 321-340.

Data Protection Act 2018. https://www.legislation.gov.uk/ukpga/2018/12/contents/enacted

Equality Act 2010. https://www.legislation.gov.uk/ukpga/2010/15/contents

Hedricks, C. A., Robie, C., & Oswald, F. L. (2013). Web-based multisource reference checking: An investigation of psychometric integrity and applied benefits. International Journal of Selection and Assessment, 21(1), 99-110.

Home Office. (2022). Code of practice for employers: Avoiding unlawful discrimination while preventing illegal working. https://rb.gy/ppuohi

Kidd v. Axa Equity & Law Life Assurance Society. (2000). IRLR 301.

Taylor, P. J., Pajo, K., Cheung, G. W., & Stringfield, P. (2004). Dimensionality and validity of a structured telephone reference check procedure. Personnel Psychology, 57(3), 745-772.

Zimmerman, R. D., Triana, M. D. C., & Barrick, M. R. (2010). Predictive criterion-related validity of observer ratings of personality and job-related competencies using multiple raters and multiple performance criteria. Human Performance, 23(4), 361-378.