If you are providing a reference for a former colleague or employee, you may have questions about what kind of information you can give in a reference and any legal implications. This section answers your questions and more.
What can and can’t I say in a reference?
When providing a reference, what you say must be fair and accurate and it should not lead to discrimination, so bare this in mind when giving a reference. There are also local laws that you may need to take into account.
In the US, there are restrictions on what can and can’t be disclosed to potential employers in a reference, varying from reasons for termination or separation to professional conduct. These laws vary by state, so if you are unsure, it would be wise to check what you can and can’t say.
In the UK, workers may have the right to challenge a reference if they think it was unfair or misleading, particularly if they can prove it cost them a job.
If you want to give a more detailed, positive reference, include descriptions of when you worked together, projects you worked on and the candidate’s strengths in these situations. You could also include constructive criticism and advice for how to get the most out of the candidate, for example by including management styles or work situations they would thrive in or would not be suited to. Hiring managers will really value any honest and fair information you can give.
What should I do if I’m asked to provide a job reference I don't want to give?
Whether or not you are able to refuse giving a reference depends on the contract the candidate had with your company, the industry you operate in and local laws.
If their employment contract says the candidate must be given a reference, you have to comply. Some industries also state that you must give a reference (sometimes within a particular time-frame), such as finance or healthcare.
If the law does not dictate that you have to give a reference, then you are able to refuse giving a reference. It would help the candidate if you could tell them why you don’t want to be put down as a reference, for example if you don’t think you know their skills and experience well enough to recommend them.
Do previous employers have to provide a reference?
The answer to this depends on your industry or geographical area. In some US states, certain industries are required to provide a reference within a specific time period or candidates have a specific time frame within which they can request a reference. You should check local laws to see whether you are obliged to provide a reference or not. If you don’t want to provide a reference for the candidate, it would be helpful if you could explain your reasons why so they can select a more appropriate referee.
Could I be held liable if I give a bad reference?
You should ensure that what you say in your reference is true and fair. You could be held liable if you deliberately include anything that is false or misleading. As always, laws vary between countries and between states. If you are unsure, you should check your local laws or gain .
How quickly do I need to provide a reference?
Depending on your industry, your company policy or local laws, you may need to respond to a reference within a certain time period, as, for example, in some US states. Job offers are often made on the condition that the candidate’s references are satisfactory, so responding as quickly as possible could be put the candidate in a more favourable position.
What can recruiters ask when checking references?
When collecting references, most recruiters will ask basic information about the candidate such as job title, and duration of service. They may also want to confirm the candidate’s duties and responsibilities. Some recruiters may want to probe a little further into the candidate’s skills, abilities and aptitudes to inform their hiring or onboarding decisions.
Watch out for questions that could lead to discrimination on the grounds of race, religion, sexuality, marital status or gender. For example, questions such as “how many sick days did the candidate take?”, “does the candidate plan on having children soon?” or “how would you rate the attractiveness of the candidate?” could lead to discriminatory decisions. If you respond, you could be held liable, so it is best to decline to answer these questions.
Who needs to provide consent before checking references?
To collect a reference, you need the consent of both the candidate and the referee. Reference data can be considered to have dual ownership as even though it is the referee’s words, the reference contains information about the candidate, so this is classed as their data too. You will also need the consent of both parties to store the references.
Can I give a bad reference?
Legally, references need to be true and fair accounts that are not deliberately misleading. In some cases, employers can give details such as reasons for termination and any disciplinaries, while these may not be favourable they are not usually illegal. If you are unsure, you may want to seek legal advice.
How does GDPR affect reference checking?
GDPR is legislation in the EU around data protection. How you collect and store references in the EU must be compliant with GDPR. The main thing you need to consider is consent to collect the reference and to store the reference. References are classed as the personal data of both the referee and the candidate meaning both have a claim to ask to view it and both have a claim to ask for it to be deleted.
Recruiters—it is your responsibility to instruct the candidate to ask for the referee’s consent to both pass on the referee’s contact details and to collect the reference. This will make it easier for you to collect the reference as the referee will be expecting you to get in touch.
One advantage of digital references using decentralised storage is that you don’t need to worry about deleting data from your personal drive or requesting permission to store data for example as a folder of PDFs or tracking information in email conversations.
Conclusion
Referencing practices vary between companies, industries and countries. Because of this, the process can feel quite daunting leading to some companies dropping the reference practice altogether. At Zinc, we believe referencing can be better. It can be more transparent, simple and productive for everyone involved. We hope this guide has helped clarify the referencing process, whether you are looking for a job, providing a reference or recruiting.
If you would like to join the referencing revolution, to see how Zinc’s automated referencing tools can help you maximise your online reference checks.
*Legal Disclaimer:
This guide is for general information only. Whilst we endeavour to ensure that the information on this site is correct, no warranty, express or implied, is given as to its accuracy, and we do not accept any liability for error or omission. This guide does not constitute legal advice, and neither Zinc nor its employees can be held liable for any damages resulting from the use of or inability to use the information. Additionally, Zinc cannot be held responsible for any action or decision made due to using this guide.
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