References form an important element of the pre-employment checks which support recruitment decisions in schools. Whilst there is no legal obligation to provide a reference it is general practice in schools to do so.

Following a recent Employment Tribunal Case relating to employment references, we have looked at best practice in relation to requesting and providing references.

In the case in question, a job offer was withdrawn following the provision of an oral reference in which the employee’s former manager disclosed to the recruiting manager that the employee had experienced significant sickness absence in her previous role. The former manager implied that the sickness absence had affected her performance in her previous role and that she might struggle with the pressure of the new job. The tribunal found that the sharing of this negative health information played a key part in the decision to withdraw the offer and that this amounted to disability discrimination.

This case has highlighted some of the potential difficulties that may arise in relation to employment references.

Here are our top 10 tips to help you get things right:

  1. All offers of employment should be conditional and subject to the receipt of 2 satisfactory written references.
  2. References should be sought from a candidates’ current or most recent employer with their prior permission. In the case of previous employment in a school – the reference should be sought from the headteacher.  Where any candidate is not currently working with children but has done so in the past it is important that a reference is also obtained from that employer.
  3. References should be sought prior to the interview to enable any issues to be explored with the candidate as part of the selection process.
  4. In accordance with the Equality Act, prospective employers are not permitted to ask about health and/or disability in a reference which is sought prior to a job offer being made.  Once an offer is made a second reference may be sought specifically asking about health issues – however candidates should be advised any 2 stage reference process.
  5. Prospective employers should request a written reference. Verbal and open references are not recommended.
  6. For safeguarding purposes, references should specifically ask whether the referee is completely satisfied with the applicant’s suitability to work with children and should also request details of any substantiated safeguarding allegations.  It should be noted that references should not ask about allegations which are unsubstantiated, unfounded or malicious.
  7. In accordance with the School Staffing Regulations, maintained schools are required to pass on information to prospective employers about teachers and headteachers who have been subject to formal capability procedures. Therefore, when requesting a reference, the prospective school may enquire whether a teacher has been subject to their school’s capability procedure in the 2 years prior to the date the reference is requested.
  8. A reference may ask about any current formal disciplinary warnings but can not ask about expired sanctions or informal warnings.
  9. Referees have a duty to ensure any information provided is a true, accurate and fair representation.  References should offer objective facts, not opinions, and the referee should be able to objectively justify any negative comments which are made.
  10. An individual may ask to see their reference. While there is no legal obligation on the referee to share the contents, the prospective employer may do so.  If the individual believes that the information provided is unfair or misleading, they may seek damages against the previous employer.