Why giving and receiving recruitment information needs careful handling

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The original article has been published in CIPD's People Management Daily, found here:

All employers have a duty of care towards prospective employers and any references they provide should be accurate and fair- not misleading- otherwise they risk claims for negligent misstatement or deceit. When an employment relationship ends amicably, an employer may wish to also praise the employee’s performance, attendance, and achievements, not just basic information such as length of service, role and duties.

Where the split holds contention, an employer may want to just provide a basic factual reference, to avoid a claim from the employee. Employers may do so, and could even refuse to give a reference at all, but this would need to be consistent for all employees, otherwise the employer would be open to allegations of discrimination and victimisation, or even breach of the implied contractual term of trust and confidence. An employer still has a duty to a prospective employer not to provide a misleading reference, and it may not always be appropriate to provide a basic reference if, for example, disciplinary action has been taken.

Certain sectors, for example, financial services and the care sector, have guidelines on references, particularly where safeguarding legislation applies. Employers should be consistent in their approach to references, and we would advise having a policy in place on providing them.

Employers can usually only process sensitive personal data, such as health information, with the employee's consent under the Data Protection Act 1998. Whilst employers can provide a record of the number of an employee’s absences in a reference, they should not give the reasons for those absences because prospective employers are prohibited under the Equality Act 2010 from asking pre-employment health questions without having a prescribed reason.

Providing wrong information on a CV, or application form, also causes problems, during recruitment. If false information is discovered on a CV, prior to a job offer being made, an employer is within their rights to simply reject that candidate, although the employer should check first that it is not an honest mistake or a typing error.

If a CV contains a material lie, and a job offer has already been made or the employee has already started work, the employer may be at risk of a breach of contract, if the offer is withdrawn or the person is dismissed, without proper notice.

One solution is to accompany any job offer letter, or employment contract, with a statement that the offer is made, subject to satisfactory checks and references. If references are unsatisfactory, or relevant information in the CV turns out to be dishonest, before the employee starts work, the contract simply may not take effect. An employee that has started work can also be dismissed, on the basis the job offer was conditional on these checks being satisfactory.

If the offer was unconditional, the employer will need to treat this as misconduct, through its disciplinary procedure, except in a case of summary dismissal (usually reserved for gross misconduct), and they will also need to give contractual notice, or any shorter period of notice prescribed under the probation period, if they choose to dismiss the employee.