Case law and convention have combined to end formal endorsements of candidates – but that might not be a bad thing
Once upon a time, it was almost impossible to get through the door in a new job until your past employer had confirmed you were honest, reliable and productive. The reference was the rubber stamp on your employment. Today, they are viewed as an anachronism.
Most employers are prepared only to confirm name, date of service and positions held. Some will confirm the amount of sick leave (or confirm it didn’t exceed certain limits). But the days of florid – and sometimes unintentionally entertaining – prose about a new recruit’s merits seem well and truly over.
“The concept of a reference, in my view, is out of date,” says Bobby Benson, director of recruitment company Robert Adams Search and Selection. “Most corporates will confirm dates and give a reason for leaving, but it’s the bare minimum, nothing subjective.”
What has led to this drastic decline in detail? “The single biggest factor driving the move towards more basic references was probably the change to the data protection laws in 1998,” says Carl Richards, an employment partner at King & Wood Mallesons. This legislation enabled candidates to obtain a copy of any references written about them, ending the concept of confidentiality and increasing the potential for repercussions.
Case law has also contributed to employers applying more caution, and less colour, to references. Spring v Guardian Assurance, from 1994, is significant because it held that employers owe a duty of care to existing or former employees when providing references. This case set out the principle that, if a reference was not accurate, the employer could be sued for negligent misstatement.
The reference concerned claimed that Mr Spring, who worked for Guardian Assurance via one of its appointed partners, was a man of “little or no integrity and could not be regarded as honest”. He failed to gain further employment and eventually won a claim for negligence at the High Court.
Employers also need to take care in not providing a reference that could be considered discriminatory (or not providing one for discriminatory reasons), according to Richards. For example, comments around sickness absence, if such issues are on the grounds of disability, could leave an employer open to a claim. With no cap on compensation in this type of claim, it’s not surprising that employers want to stick just to the facts.
Increasingly, reference requests are being handled by HR. “Some managers will offer a personal reference, but they need to make absolutely clear that this is their view, not that of the employer – for example, by avoiding headed notepaper or company email,” says Anne Pritam, employment partner at Stephenson Harwood. “Understandably HR are not keen on this,” she explains.
But the demise of the reference doesn’t mean you can’t dig deeper. Good recruiters may already have relationships with other companies, so they may be able to make informal enquiries. LinkedIn recommendations can also be a good indicator, within reason.
“The important thing a reference does is confirm they are who they say they are. You will have looked at someone’s competencies at interview,” says Becky Mossman, HR director at background-checking company HireRight. She advocates using a shorter probation period to build a fuller picture of whether someone’s up to the job.
The traditional reference is a thing of the past, concludes Richards. He doesn’t mourn its passing. “We should be wary of nostalgia,” he says. “References hark back to a different era when the business world was based on the old boys’ network and personal endorsements. The HR arsenal of recruitment tools has become broader and more science-based.”
Worst (and best) of references
“Can’t sing. Can’t act. Balding. Can dance a little”
The verdict from Fred Astaire’s first screen test with RKO
“We don’t like their sound”
An unnamed record executive gives his opinion on an early Beatles audition
“Boss, I think I’ve found you a genius”
The telegram from the talent scout who spotted a 15-year-old George Best