The truth behind reference requests; what really needs to be included?
DENTAL BULLETIN, ISSUE 45
Generally speaking, there is no obligation on an employer to provide a reference. However, if you do choose to give one it must be true, accurate and fair. This duty is owed to both the recipient, new employer, and the subject of the reference, the ex-employee. This means you have to balance your duties to both when responding to reference requests. The consequences of providing misleading information are that either could issue a claim against you for damages. For example, if a person loses a job offer because of incorrect information you have provided, they could seek to recover lost earnings from you.
Nowadays it is common practice for employers to limit the terms of their references, only providing confirmation of the job title held and dates of employment when responding to reference requests, along with a disclaimer about the content, to avoid any risks.
However, as a dental practice do you have increased obligations to provide more than this? What if you have concerns about a dental professional’s clinical ability? Should you report this to future employers?
The CQC does not give any guidance as to what information a practice should put in a reference. However, regulation 19 places a duty on a practice to employ persons who are ‘fit and proper’. The guidance on the CQC website in respect of this regulation states:
Providers must inform others as appropriate about concerns or findings relating to a person’s fitness and must support any related enquiries and investigations that others have carried out. They may inform bodies such as professional regulators, police, and safeguarding authorities about concerns.
As such, if an employer is aware of any conduct that undermines a person’s fitness to practice then this regulation places a positive duty to report this behavior to prospective employing practices. Below we examine ways in which this duty should be applied.
Dismissal for Gross Misconduct
If you dismiss a dental professional for gross misconduct, especially where that dismissal is in respect of their clinical practice or a breach of the standards for dental professionals, as a result of Regulation 19 you would have an obligation to inform other dental practices of this.
You would also need to report such matters to the DBS, so they can make a decision as to whether this information should be contained in DBS checks. This way, if the ex-employee does not seek a reference from you, it should be flagged up on any pre-employment checks done by the prospective practice. Depending on how serious the issue is you may also have a duty to report it to the GDC.
However, if the reference request was say from a supermarket, you may want to consider just providing dates of employment and job title as there is no risk to the public in this role.
Outstanding disciplinary matters
In the case of Bartholomew v London Borough of Hackney  IRLR 246 the council provided details in relation to a pending disciplinary against the employee. The council made it clear that the matters had not been concluded when it gave this information. The court held that if the employer had not included details of the disciplinary proceedings, it would have failed in its duty to the prospective employer to provide a reference that was not unfair or misleading.
It will depend on what the outstanding disciplinary matters are as to whether you should be providing details of this to other dental practices. Any issues about clinical performance or a breach of the standards for dental professionals should be raised. If you do mention outstanding disciplinary matters, you must make sure you state what stage they were at so the information provided is fair and balanced. You should not set out disciplinary matters, where you may have had a suspicion but no action was taken.
Sickness Absence and Health Issues
You will often see in a reference request a question about the amount of time off an employee has had. Whilst an employer is permitted to provide details of the number of days an employee has been absent, due to data protection laws, unless the employee consents, details regarding the reasons for any absences should not be disclosed as this is personal sensitive data.
Whilst the issue is unlikely to arise that often, if the dental professional is unable to perform their role due to health issues, for example a degenerative illness that meant they were no longer safe to practice, an employer would be prevented from providing information about what those health issues are by the data protection act. You can give details about performance issues, but you will need to tread careful as to how much detail you provide. We would suggest in these circumstances, if you have grave concerns about the person’s ability to practice as a result of their health and feel they are a risk to the public, this should be reported to the GDC to make a decision.
The effect of providing an untrue, misleading or unfair statement is that recipient or the subject matter of the reference can claim damages against you in respect of that incorrect information. Depending on the nature of the information this could be a claim for discrimination, defamation, negligent misstatement or deceit.
If a staff member provides a reference on your behalf for an ex-employee, you could be liable for the content of that reference. This is even the case if the reference has been provided on a personal basis but the staff member has included their job title and it is on company headed paper.
A claim can be pursued based on both written and verbal references, although it will be much harder for the ex-employee to prove what was said in a verbal conversation. However, the risk is still there; in theory you could be held liable for your receptionist unwittingly responding to questions about a colleague over the telephone. Staff training on when and who can provide a reference is therefore crucial.
4 Practical tips on dealing with employee reference requests
We recommend the following to our clients when dealing with reference requests:
- Ensure you deal with all reference requests consistently. A failure to do so could be deemed discriminatory and/or victimisation;
- Consider having a policy in place and make sure your staff know who can and cannot provide a reference;
- Add a disclaimer to the end of the reference;
- If you receive reference requests in a question format, do not feel you have to answer all the questions therein. Also you do not have to respond using the question format sent. You can send a letter containing the information you wish to provide.
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Laura Pearce, Senior Solicitor