The Dangers of Verbal References

For almost all employers, the provision of references in the event that an employee leaves and takes up a new post is commonplace and there are protocols in place to cover their wording.

However, prospective employers can tend to view written references as more or less worthless when it comes to getting a good impression of the applicant.

Verbal references are often far more valuable, since they are by implication less guarded and more spontaneous; this means that they can be used to find out a lot more about the candidate than might be the case from a formal written reference.

However, there are problems inherent in the format of the verbal reference and these problems can result in legal action, as was the case recently with Pnaiser -v- NHS England and Coventry City Council.

What happened?

Ms Pnaiser worked for Coventry City Council, but because of a medical condition, she had to take a lot of time off work. Her medical condition was counted as a disability under the Equality Act 2010.

She was made redundant from the Council (although not because of her disability) and a settlement with the terms of her termination were agreed between her and the Council. The written reference for Ms Pnaiser was rather anodyne and contained only the information that such a reference would be expected to contain – dates of employment, job title and main duties. It made no reference to her sickness record which gave details of the amount of time she had taken off because of her medical condition.

After leaving the Council, she applied for a job with NHS England. The interview was carried out by a Professor Rashid, who noted that she was an “excellent candidate”. Because of this opinion, she was offered the job, subject to references. The written reference arrived, but the information did not satisfy Professor Rashid and he telephoned the Council to obtain more information. He spoke to a Ms Tennant, who informed him that Pnaiser had taken “significant periods of sickness absence” and it would therefore be difficult to judge whether Pnaiser was right for the role that she had been offered.

The job offer was subsequently withdrawn, although Rashid said that he had been reconsidering the offer because of reasons that were unconnected with the information he had learned during the call to Tennant.

Ms Pnaiser brought claims against both Coventry City Council and NHS England. She said that the provision of the negative verbal reference was ‘unfavourable treatment which arose in consequence of her disability’ as was NHS England’s withdrawal of the offer.

Both of these claims ultimately succeeded.

What to consider about verbal references

The main problem with taking up verbal references is that there is no real control over their quality or reliability. Prospective employers who are considering using them to gain a wider picture of a prospective candidate should consider the following:

• Whom do they contact to obtain the verbal reference? If it is the same person who provided the written reference, will they want to give away more information than they have already done? If it is a different person, will they want to provide information that may well contradict the official reference provided on behalf of the company?

• What sort of information might be provided in the verbal reference? Can the prospective employer rely on the accuracy of that information? Taken together with the foregoing, could the prospective employer end up speaking to somebody who bears a grudge against the candidate?

• How is the verbal reference to be monitored? Will the prospective employer record the conversation or should the former employer do so? If no record is made of the conversation, what proof is there that the conversation took place in the way that it is claimed to have done?

Following several cases regarding written references, employers have made their responses to requests for references as anodyne as they can possibly be. This has, of course, vitiated their usefulness.

What should employers bear in mind?

The case of Pnaiser is a reminder of the risks that can arise when a prospective employer requests a verbal reference and an existing employer provides it.

A prospective employer who obtains a verbal reference and subsequently withdraws a job offer may find that if the case goes to an Employment Tribunal, the contents of the verbal reference may well be used as evidence in the Tribunal proceedings.

If the nature of the reference relates to any of the protected characteristics under the Equality Act 2010, the claim may well become one of discrimination, with all the implications that this contains.

An employer who is asked for a verbal reference need not say anything; they are under no obligation to do so. Considering the legal risks, perhaps reticence is the best policy and if that is not possible, then the practice of recording all verbal references and ensuring that a specified person handles them may well obviate some of the more obvious risks.

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