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HCR Law Events

18 May 2021

A guide to dealing with employment references

References play a central role in the vetting of prospective teachers and other school staff and are used in conjunction with other pre-employment checks to assess suitability for a position. So, it is important that schools understand their obligations when giving and receiving references.

Whilst there is no detailed legislation specifically designed to deal with the provision of employment references, independent schools will need to follow the statutory and regulatory requirements as set out within ‘Keeping Children Safe in Education’ 2020 (KCSIE) and the ISI Commentary on the Regulatory Requirements 2020 (the ISI Commentary).

This guide summarises the key points for schools to be aware of when requesting and providing references. It also addresses some of the data protection implications and complex situations that schools may come across when dealing with employment references

Requesting references

Do schools have to seek references?

Whilst there is no specific legal requirement to seek references, in practice it is necessary for schools to do so to ensure safer recruitment compliance. KCSIE provides that schools should always ask for written information about a candidate’s previous employment history in order to support appointment decisions and the ISI Commentary is clear that references are required as part of having regard to KCSIE

How should references be obtained?

KCSIE does not prescribe the precise method or format for requesting references leaving schools with some discretion.

Typically, schools may request references via a pro-forma or questionnaire style request, although the use of such forms is not considered a standalone compliance requirement.

From time to time, it may be necessary to contact the referee to provide further clarification following the provision of a written reference. Where this is done verbally, for evidential purposes, the ISI Commentary states that detailed notes of the conversation and who was spoken to must be taken, dated, and signed.

Where electronic references are obtained, inspectors will expect schools to ensure they originate from a legitimate source.

From whom should references be obtained?

References should always be obtained from the candidate’s current employer. Where this is not possible because the candidate is out of work, verification of the most recent period of employment and the reasons for leaving should be sought. If the candidate has no previous employment history, schools may request character references which may include references from the candidate’s school or university.

References should always be requested directly from the referee and preferably from a senior person with appropriate authority, not just a colleague of the candidate.

Schools should not rely on open references (for example, in the form of ‘to whom it may concern’ testimonials), nor should they rely purely on the information provided by the candidate as part of the application process without verifying that the information provided is correct.

How many references should be sought?

KCSIE does not specify the precise number of references that must be sought but implies that there will be more than one. For inspection purposes, the usual expectation is that a school will obtain “a minimum of two references…, unless there is a good reason not to”.

There may be certain circumstances in which a candidate finds it more difficult to obtain two separate references. This may be particularly the case in respect of cleaning or other support staff. In such cases, schools should take reasonable steps to obtain at least two references (i.e. they should push for two references if only one is forthcoming). If the candidate is not able to provide two references, schools may proceed with one provided they are satisfied that they are able to check that the information provided regarding employment history is not contradictory or incomplete.

Where one reference is accepted, we would recommend that a note is placed on the Single Central Record to say that the school sought two references and to explain why only one was forthcoming and the rationale for accepting this.

When should references be obtained?

KCSIE notes that there is a benefit to obtaining references before interview because it allows any concerns that may arise to be explored further with the referee and taken up with the candidate at interview. Whilst the guidance has moved away from making this timing a strong recommendation, it remains best practice. If this is the approach taken by the school candidates should be made aware of this and asked to notify the school at the time of submitting their application if they would prefer the school not to take up references in advance of interview.

Is it necessary to seek a reference for an internal candidate?

The ISI Commentary notes that suitability references should also be sought for internal candidates and internal references are permissible where appropriate. Inspectors may accept that it may sometimes be more instructive, where appropriate, to enquire of current senior colleagues whether they have any suitability concerns, particularly where colleagues from former employers of the candidate are un-contactable due to the passage of time.

Is any specific information required?

Schools should seek information relevant and proportionate to the prominence of the role applied for. However, as a minimum, inspectors will expect schools to have asked referees whether they are aware of any reason or have any concern that the applicant may be not suitable to work with children.

Save for this minimum requirement, there is no prescribed method by which references should be requested, however, often questionnaire or pro forma reference request forms will be used (a template pro forma reference request form is included within the ISBA Safer Recruitment Pack). Specific questions are often asked regarding:

  • The candidate’s current position
  • Their dates of employment
  • The reason for termination of employment (if relevant)
  • The key duties and responsibilities undertaken by the candidate
  • Any disciplinary offences, including disciplinary offences relating to children or young persons (whether the disciplinary sanction is current or time expired)
  • Any child protection allegations or concerns relating to the candidate and the outcome of any associated enquiry or disciplinary procedure
  • The referee’s opinion regarding the candidate’s work performance (e.g. whether they performed their duties satisfactorily, whether they would re-employ them etc).

Questions about sickness and absence rates should not be asked when requesting a reference prior to job offer. These enquiries can be made following the job offer.

How should references be scrutinised?

Once received, schools should conduct some due diligence and ensure that all references are appropriately scrutinised and verified in accordance with the requirements of KCSIE. In particular, schools should check that all specific questions have been answered satisfactorily by the referee and further clarification should be sought, if appropriate.

For consistency, the detail provided within a reference should be compared with the information provided by the candidate on their application form and any discrepancies should be explored.

Any information about past disciplinary action or allegations that are disclosed should be considered carefully when assessing the applicant’s suitability for the post.

Essentially, the process of scrutinising references is a form of risk assessment and should be documented internally.

Providing references

Do schools have to provide references?

Generally, there is no legal obligation on a school to provide a reference for an existing or previous employee, nor are schools obliged (or advised) to do so under KCSIE. Nonetheless, it is custom and practice within the sector to provide employment references and the ISI Commentary states that there is a strong expectation on schools to do so.

Schools should also be mindful that refusing to give a reference for an individual or failing to adopt a consistent approach when providing references, could lead to allegations of discrimination or a breach of the implied term of trust and confidence.

What are a school’s duties and obligations when providing references?

References do not have to be full and comprehensive, but a school will be under a duty to take reasonable care to ensure the information contained within a reference is ‘true, accurate and fair, and does not give a misleading impression’. The referee will also owe a common law duty of care to the recipient when providing a reference.

What details should a reference contain?

There is no set format for providing a reference. It is for the referee to determine, having regard to the school’s policies and procedures and any contractual obligations (for example, under a settlement agreement), the form that a reference will take (i.e. whether it is a factual or a detailed reference) and the actual information that is disclosed. That said, where applicable, schools will be expected to comment on an individual’s suitability to work with children.

In the event that a school chooses to limit references to a brief factual reference in order to mitigate the risk that the reference omits material information, it should explain that it is their policy to provide a reference in this format (assuming that is the case).

When giving detailed references, schools should avoid providing sensitive information relating to issues such as disabilities, unless they have the specific, express consent of the employee.

How should a reference be provided?

References should, ideally, be provided in writing either by way of a standalone reference or by completing a pro forma or questionnaire (if the request is made in this way).

Oral references (formal or informal) are more likely to lead to legal claims than written ones and schools should generally avoid giving such references. If an oral reference is provided, a referee should not make any statements that it would not be willing to put in writing. It is also good practice to follow up in writing to provide confirmation of the information disclosed so as to protect the school’s position in the event of a later query or dispute.

Who is liable for the information contained within a reference?

When a reference is provided in a professional capacity, the school will be liable for the information contained within it.

If the information in a reference is incorrect or inaccurate and causes an individual or prospective employer to suffer loss, legal action may ensue and financial compensation can be awarded. An individual may also make a complaint to the Information Commissioner’s Office (ICO), arguing that their personal data has not been processed in accordance with their data protection rights.
It is therefore advisable to have a clear (ideally written) policy in place which dictates the school’s approach to giving references. It should also include which employees / levels of management are permitted to give a reference and what sort of information to include. Importantly, this policy should be applied consistently in order to mitigate the risk of allegations of discrimination or a breach of the implied duty of trust and confidence.

Will a disclaimer contained within a reference protect schools against claims from a new employer?

Within a reference, employers often include a disclaimer of liability arising from errors, omissions or inaccuracies in the information contained therein. The effect of a disclaimer is to attempt to limit the referee’s liability in negligence. Whilst a disclaimer can be useful (particularly in terms of managing expectations), it will be void unless it is reasonable.

Unsurprisingly, a disclaimer will not provide a defence to a referee if it knowingly includes false information which the recipient relies on. In these circumstances, the referee could be liable to the recipient for deceit or even fraud.

Data protection implications

Can an individual see a copy of a reference?

Under data protection law individuals (including employees) have a right to know what information about them is being held and used by organisations (including schools). They can make a ‘subject access request’ (SAR) or ‘data subject access request’ (DSAR) to access their personal data but this is subject to certain limitations and exemptions.

One exemption to this right of access relates to confidential references. Whereas previously there was only a SAR exemption for outgoing references, but not those received from others and kept on file, the Data Protection Act 2018 extended this exemption to cover both those received and given. These references – whether for education, training, employment or volunteering purposes – do not need to be disclosed when responding to a SAR.

It is important to note that this exemption only applies to references provided confidentially. Factors which may suggest confidentiality include if it is marked as being “private and confidential” (or words to that effect) or if you adopt a (written) policy of keeping them confidential. A school’s approach to references may also be covered in its staff privacy notice.

This does not mean that an individual will not see an employment reference. Some schools may adopt a policy of openness particularly if they are the provider of the reference. On occasion, a reference may also be seen and ‘agreed’ as part of a settlement agreement (see below). Recent ICO guidance on SARs states that it is good data protection practice to be as open as possible with individuals about information which relates to them. The ICO’s view is that individuals should be able to challenge information that they consider to be inaccurate or misleading particularly when, as in the case of a reference, this may have an adverse impact on them.

Apart from data protection law, the reference might be disclosed in any future legal proceedings. As such, when preparing a reference, schools should be mindful that an individual may see a copy of it sooner or later.

How long should a reference be kept on file?

There is no specific timescale set out in law. The rule of thumb is that personal information (including references) should not be retained for any longer than is necessary. Schools will therefore need to consider what retention period is appropriate and necessary for their organisation in line with their policies and practices in respect of data retention generally.

A school’s retention period may vary depending on whether it is an incoming or outgoing reference. Some schools will destroy an incoming satisfactory reference soon after receipt, simply making a note of the fact that a satisfactory reference was received. Others will keep a copy of the incoming reference until the employee has successfully completed a probationary period and is confirmed in post.

As far as outgoing references are concerned, they may need to be retained for significantly longer than this, in line with the retention period for the personnel file more generally, as it may be needed to defend any future legal claim made against the school.

Do employers need an individual’s consent to provide a reference?

When responding to reference requests, schools need to consider and document their lawful basis for processing the personal data of the individual who is the subject of the reference. This is central to the concept of “fair and lawful processing”, which is at the heart of data protection legislation.

In an employment context, the lawful grounds or conditions which should usually be relied upon will be either that the processing is necessary for the performance of the contract with the employee, or that it is necessary to fulfil a legal obligation. However, neither of those fit easily with the provision of a reference.

Consent is an alternative ground. Most commentators on data protection and, indeed the ICO suggest, that in most cases any consent given by employees will not be valid because of the imbalance in the power relationship between employer and employee. However, in the case of the provision of employment references, it is clearly in the employees’ interests to give consent, and they are not normally in any way under pressure from the current employer such as might invalidate any consent given.

Dealing with complex situations

What to do when an employee leaves the school’s employment during a disciplinary process?

One of the primary reasons why employees resign during a disciplinary process (particularly where they suspect that a dismissal is imminent) is to seek to preserve their positive employment history for the purpose of a reference. Employees often take the view that, from the perspective of a reference, it is preferable if they resign as opposed to being dismissed for misconduct or issued with a disciplinary sanction.

Failing to conclude a disciplinary process due to an employee’s resignation often presents difficulties for a referee because a decision has not been reached. In these circumstances, schools should ensure that the information provided in any reference is factual (i.e. that a disciplinary process had been instigated but the individual resigned before it was concluded).

Schools will also need to be mindful that if the allegation(s) met the threshold within Part 4 of KCSIE and have a potential bearing on the safety or welfare of children, every effort should be made to reach a conclusion to the disciplinary process despite the employee’s resignation and even if s/he refuses to co-operate. In this context, following advice from the Local Authority Designated Officer (LADO) and legal advisers, schools may be better placed to comment on the sanction that would have been imposed had the individual not resigned.

Can schools ‘agree’ to give a reference as part of a settlement agreement?

Yes. It is common for schools to include a term in a settlement agreement which provides that it will respond to any requests for a reference in accordance with an agreed form (which is usually annexed to the agreement).

In these circumstances, schools should be mindful of their obligations when giving a reference (as set out above) and avoid giving an overly favourable reference with a view to reaching a swift conclusion to the settlement negotiations.

Where an agreed reference forms part of a settlement agreement, schools should ensure that they do not deviate from this, unless there is an express clause within the agreement which permits the school to do so. Failing to abide by the terms within a settlement agreement could lead to a breach of contract claim.

Difficulties can also arise where a school discovers potential misconduct after it has entered into the agreement or when a prospective employer requests additional information that falls outside of the scope of the agreed reference or requests it in a different format. As such, the terms of a settlement agreement should be carefully drafted so as to protect the school’s position in such situations.

What to do if there are safeguarding concerns?

Schools always need to be mindful of their duties to safeguard and promote the needs of children. As a result, referees often experience difficulties when handling a reference request for an individual where there have been safeguarding concerns.

From a legal perspective, the courts have determined that an employer does not owe an employee (current or former) a duty of care when making safeguarding disclosures. Instead, precedence will be given to the duty to disclose. That said, schools still need to be careful about the information they disclose and the way in which it is presented, and must ensure that any disclosure made is true, accurate, fair and not misleading. As such, the information provided should be factual.

Generally speaking, if a school is aware of circumstances which may impact on an individual’s suitability to work with children (unless such matters have been found to be false, unsubstantiated or malicious (see further below)), these should be disclosed following a request for such information.

Part 4 of KCSIE makes it clear that where an allegation or a history of repeated concerns or allegations have been proven to be false, unsubstantiated or malicious, they should not be included in employment references.

That said, each case will depend on its particular circumstances and advice should be sought from the LADO and/or the school’s legal advisers to ensure compliance with legal and regulatory requirements.

What if the candidate has previously been self-employed?

Increasingly, candidates are applying for positions within schools (particularly support positions) where they are (or have been) self-employed operating their own business. As a result, there is often uncertainty about how a school should verify the candidate’s employment history and suitability because a conventional reference from the candidate’s current or previous employer may not be possible or appropriate.

At present, KCSIE makes no specific reference to circumstances where a candidate is (or has been) self-employed.

In essence, the fact that a candidate has been working on a self-employed basis and, as a result, is not able to provide an employment reference in the conventional sense should not be a reason to disregard the individual due to the perceived difficulties in verifying their employment history and suitability.

In these circumstances, schools could request at least two professional references from the candidate’s current or previous customers/clients. A personal reference may also be advisable.

If a candidate has been self-employed for a short period of time, a reference from their previous employer is recommended. Schools may also wish to verify the details of the candidate’s business, for example, by checking if it is registered at Companies House.

Summary

We recognise that, in the realm of employment references, what will be appropriate is likely to vary on a case-by-case basis. With this in mind, if schools are unsure which references to request, how many and from whom, or whether the references received will be sufficient to meet the statutory and regulatory requirements, we recommend they take legal advice.

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About the Author
Oliver Daniels, Partner

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