NB: Applicants must be informed that they will not be permitted to start if successful without two satisfactory references.

Transcription

1 REFERENCE REQUESTS Application of this section to Community, Voluntary and Foundation schools. The Employment Law issues raised in this document apply to all schools Advice on difficult references should always be sought from your HR provider Requesting and Scrutinising References Received The purpose of seeking references is to obtain objective and factual information to support appointment decisions as past behaviour is the most reliable way of predicting future behaviour. References should be requested at the point the individual is shortlisted for interview for all roles regardless of whether the role is permanent or temporary in any position and regardless of whether the individual is internal, external including agency staff. All references should be scrutinised by the Headteacher and if the content is ambiguous the Headteacher or nominee should seek clarity by telephone with the referee and take a note of the conversation. No inhibition exists to restrain a Headteacher from making further and appropriate enquiries of the provider of a reference, the applicant for the job or anyone else deemed relevant If references are received the panel should query areas of concern or why they have not been received. If references have not been received or if the individual has declined to allow contact with referees at interview stage this should also be a point for discussion by panel members trained in safer recruitment. NB: Applicants must be informed that they will not be permitted to start if successful without two satisfactory references. A minimum of two references should always be sought and obtained with one from the last employer and wherever possible at least one should be from a previous role where the applicant worked with children. Individuals should not be permitted to start without two satisfactory references (subject to Headteacher discretion). Reference Checklist Is it on headed paper or should provide a company stamp. Verification may be necessary if received by . Is it written by the authorised person ( in the case of a previous school this should only be the Headteacher) Does it answer all of the questions asked including safeguarding, amount of absences, Is it signed? Does it include start and end dates (this should include exact date so that continuation of service can be calculated not just month and year) Check if testimonial or open reference (starts with to whom it may concern usually, if so disregard and re-request. Is it from a previous employer (must have at least 1 from previous employer) Is it a personal reference? If so this can be accepted in addition to 1 professional references. Compare information provided by referee with application form Does it read like an agreed reference? Does it provide full information to the answers and can be considered satisfactory Updated August 2014 Page 1 of 11

2 The provider of a reference owes the recipient of the reference a duty of care under the principles of negligent misstatement if the latter suffers loss as a result of inaccuracies in a carelessly drafted reference. A negligence claim could be made by a new employer if the previous employer failed to reveal something which ultimately causes the new employer loss. Problems in obtaining references There are often difficulties experienced in obtaining references, the most common is delays or not receiving a response in these cases: refer back to the individual and state that you have not be able to get a response to double check the contact information they have given and ask them to contact their referee. If further delays persist ask the individual to provide another referee. If further delays persist then you should state to the individual that you will be unable to give them a start date without two satisfactory references. If yet further delays persist take HR advice as to whether you wish to withdraw the offer of employment. Often it is just poor organisation or IT problems that have resulted in the delays in receipt of a reference, however it may be an indication that the referee is reluctant to provide a reference for another reason relating to the suitability of employing the individual. It is not advisable to employ individuals without any satisfactory references. If an individual is newly qualified a reference should be obtained from their college, work placement and another workplace, the other workplace may not be related to working with children. The Headteacher is to consider in good faith whatever references are received and to judge whether they are satisfactory or unsatisfactory. If the Headteacher decides that the reference is unsatisfactory, a decision to withdraw the job offer is unlikely to be challenged successfully though advice should be sought from the School s HR provider prior to any letter being sent to the applicant. An updated reference request letters are attached as Appendix A Giving a Reference on an Employee A School owes the employee the three duties set out below concerning the provision of a reference. If an inaccurate reference is given, attempts should be made to correct the error by sending an accurate reference and a covering letter as soon as possible. 1. A duty of care in negligence A School will be liable to an employee in negligence if the employee suffers loss as a result of the employer's failure to exercise reasonable care in the preparation of a reference. A School is under a duty to provide a reference which is in substance true, accurate and fair. The reference must not give an unfair or misleading impression overall, even if its discrete components are factually correct. A School will not be liable for references that are not comprehensive unless the omission of the information has the effect of giving a misleading impression of the employee 2. An Implied duty of mutual trust and confidence An implied contractual term of trust and confidence may be breached by the provision of a misleading reference. Statements in a reference should not refer to complaints or difficulties that have not been raised with the employee concerned. Updated August 2014 Page 2 of 11

3 3. A duty not to make defamatory comments or those which amount to malicious falsehood There is no liability for libel provided the School believes the information in the reference is correct and is given without malice. There are a number of points to bear in mind when giving a reference. Ensure the reference is not only factually accurate but also fair and not misleading in the overall impression it gives to the recipient. The School should ensure the individual's line manager who has all the relevant information regarding the individual, prepares it. This should then be cleared via the School s HR provider if it is deemed in any way contentious Has the reference been addressed to a named person rather than 'to whom it may concern'? Has the disclosure of spent criminal convictions been avoided? Has a disclaimer been included? If supplying a reference where a compromise agreement has been reached, it may be prudent to reach an agreement on the precise wording of the reference to avoid any future litigation. Double check the employee s file to ensure this has not been agreed if this is an employee who left before the current Headteacher started. Q A Can a School disclaim liability by putting a disclaimer on the reference? Standard Southwark Council references include the disclaimer paragraph this reference is given without legal obligation on the part of the Council and its officers. The effect of a disclaimer is to attempt to limit the referee's liability in negligence and is therefore subject to the Unfair Contract Terms Act 1977 (UCTA). A disclaimer used in these circumstances is void unless it satisfies the test of' reasonableness' (section 2 of UCTA). It is generally thought that liability cannot be excluded for misstatement of facts which are normally in an employer's knowledge (performance, disciplinary record, etc). However, a disclaimer in relation to an opinion on the employee's suitability for a particular job may be reasonable. Q A We have received a reference request for an individual where there were several unsubstantiated safeguarding concerns raised, how do we respond to this request? Keeping Children Safe in Education guidance from April 2014 indicates: Cases in which an allegation was proven to be false, unsubstantiated or malicious should not be included in employer references. A history of repeated concerns or allegations which have all been found to be false, unsubstantiated or malicious should also not be included in any reference. Receiving a Reference on a potential Employee Q What do we need to be aware of when making job offers conditional upon receiving satisfactory references? A It is common practice for Schools to make offers of employment expressly conditional on receiving satisfactory references. The effect of such a clause is that the contract with the employee will not come into being unless or until the obtaining of a reference which is satisfactory to the employer has been received. However, this only applies if the employer has not allowed the employee to commence work. If a School allows the employee to start work before references have been received, the employee will have the same rights as any other employee for example in relation to wrongful dismissal (that is breach of contract) and you will have to follow the normal disciplinary procedure with your new employee. Starting an employee without receiving satisfactory references is also against safeguarding guidelines. Updated August 2014 Page 3 of 11

4 Q A What if the reference discloses that Disciplinary action has been taken against the applicant in the past? DFE guidance on this from Safeguarding Children and Safer Recruitment in Education April 2014 is as follows: 65. Any information about past disciplinary action or allegations should be considered carefully when assessing the applicant s suitability for the post (including information obtained from the Employer Access Online checks referred to previously). In situations like this the Headteacher should seek advice from the schools HR Provider. We have received a reference that indicates that there have been unsubstantiated safeguarding concerns raised? A Keeping Children Safe in Education guidance from April 2014 indicates: 129. Cases in which an allegation was proven to be false, unsubstantiated or malicious should not be included in employer references. A history of repeated concerns or allegations which have all been found to be false, unsubstantiated or malicious should also not be included in any reference. Q A Q A We have received a reference request that asks about sickness absence. The employee in question had a high level of sickness absence over the last 12 months, part of which relates to an operation. How should we respond?. Ensure that your response is accurate, factual and creates an overall fair impression. It may be that you need to identify number of certified days, uncertified days and special leave. Be aware of disability discrimination where the employee has a disability and any absences relating to that disability. Disclosing information relating solely to the number of days of absence will not amount to the processing of sensitive personal data. However, more detailed information which is held about worker's physical or mental health may amount to the processing of sensitive personal data, as defined in section two of the Data Protection Act If the individual has left they should have agreed the attendance records as accurate as part of the leaver s procedure Is it safe for a School to omit mention of a suspected event of gross misconduct from a reference? A School will probably be exposed to a claim from a subsequent employer if there is a serious issue of gross misconduct being investigated which the School omits to mention. The main point is that the reference must be true, accurate and fair in substance and therefore must mention the negative issue e.g. the gross misconduct or events giving rise to a disciplinary process in a way which is overall accurate and correct. The key points to note are: there is a duty on an employer to ensure that references are true, accurate and fair in substance, and there is no duty on employers to be full and comprehensive, and references must be looked at in the whole rather than breaking references down into individual sentences and stating that each individual sentence was factually correct. Note that some Schools faced with this dilemma may adopt a policy of providing a bare minimum reference, but this strategy should not be used as a means of concealing Updated August 2014 Page 4 of 11

5 something serious as a negligence claim could be made by the new employer if the result was to cause the new employer loss. A failure to disclose this information would be a breach of the schools duty of care to the new employer and may leave another school and its pupils vulnerable. Q A Can I refuse to give a reference? A School can refuse to provide a reference although this is not Southwark policy and HR advice should be sought prior to making this decision. Although there is no statutory duty to provide an existing or ex-employee with a reference, it need be noted that a refusal to supply a reference should only be exercised in limited circumstances. If the employee has complained of sex, race, religious, age or disability discrimination (or had helped another employee with such a complaint) this would give grounds for a claim of victimisation. Updated August 2014 Page 5 of 11

6 Appendix A Letter requesting reference from employer (at shortlisting stage) Private and Confidential <insert date> Dear Professional Reference Request for <insert name of candidate> BY FIRST CLASS POST I am pleased to confirm that the above candidate has been shortlisted for the position of <insert position> at <insert school>. Please find attached a job description and person specification. You are advised in order to protect the public, the post is covered by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 as amended by the ROA 1974 (Exceptions) (Amendment) Order You may therefore reveal information about convictions that would otherwise be considered as spent. Please could you answer the following questions and return it to us as a matter of urgency before the interview date of <insert date>. Please note if we do not receive this within a week of the start date this is very likely to delay this individual starting employment with us. I would appreciate it if you could answer the following questions and have put these in a form format if you prefer to answer this way rather than construct a letter. 1) Do you believe the candidate can satisfy all the items on the person specification (see enclosed). 2) How long have you known the candidate (please provide dates). 3) In what capacity do you know the candidate (i.e. personal / professional). 4) Is the candidate subject to any formal investigation or formal action? If so please provide details. 5) (teachers only) Has the candidate subject to any capability procedures within the last two years? If yes please provide details. 6) Details of any substantiated allegations or concerns that have been raised with the candidate that relate to the safety and welfare of children and young people and behaviour towards children and young people. 7) Are there any reasons why the candidate should not be employed by this school? 8) Please provide us with details of their attendance and timekeeping over the last two years. 9) Please indicate their reasons for leaving? Please note that Southwark has an open reference policy, and if the person were to be appointed they would have a right to inspect their file and any references which may be placed there. I would be most grateful for your response as a matter of urgency to enable us to fulfil our duties under our safer recruitment policy. Many thanks for your help in this matter. Yours sincerely, <insert job title> Updated August 2014 Page 6 of 11

7 Enc. Job Description and interview response form Appendix B Response form for employer (shortlisting stage) Private and Confidential <insert date> BY FIRST CLASS POST Dear Professional Reference Request for shortlisted candidate - <insert name of candidate> Under safer recruitment guidance we are contacting you because has been shortlisted for the position of <insert position> at <insert school>. Please find attached a job description and person specification. You are advised in order to protect the public, the post is covered by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 as amended by the ROA 1974 (Exceptions) (Amendment) Order You may therefore reveal information about convictions that would otherwise be considered as spent. Please could you answer the following questions before the interview date of <insert date>. Question 1) Do you believe the candidate can satisfy all the items on the person specification (see enclosed). 2) How long have you known the candidate (please provide dates). 3) In what capacity do you know the candidate (i.e. personal / professional). Response Yes No Yes with training Date from Personal Professional Indicate relationship 4) Is the candidate subject to any formal investigation or formal action? If so please provide details. 5 (teachers only) Has the candidate subject to any capability procedures within the last two years? If yes please provide details. 6) Details of any substantiated allegations or concerns that have been raised with the candidate that relate to the safety and welfare of children and young people and behaviour towards children and young people. Question 9) Are there any reasons why the candidate should not be employed by this school? 10 Their attendance and timekeeping in the last two years. Yes Yes Response No No Updated August 2014 Page 7 of 11

8 11) What was their reason for leaving? 12) Your name and job title 13) Your signature We very much hope to hear from you shortly and thank you in advance for your assistance. If you would prefer to send us a letter please ensure you answer the questions above. If you have any queries please don t hesitate to give me a call on <insert number>. Many thanks for your assistance, please could you fax this to <insert number> or scan it in an it to <insert > together with a copy of your headed paper. Yours sincerely, <insert job title> Updated August 2014 Page 8 of 11

9 Appendix C Letter requesting reference from employer (after offer has been made) Private and Confidential <insert date> BY FIRST CLASS POST Dear Professional Reference Request for <insert name of candidate> I am pleased to confirm that the above candidate has been offered the position of <insert position> at <insert school>. Please find attached a job description and person specification. You are advised in order to protect the public, the post is covered by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 as amended by the ROA 1974 (Exceptions) (Amendment) Order You may therefore reveal information about convictions that would otherwise be considered as spent. Please could you answer the following questions and return it to us as a matter of urgency before the start date of <insert date>. Please note if we do not receive this within a week of the start date this is very likely to delay this individual starting employment with us. I would appreciate it if you could answer the following questions and have put these in a form format if you prefer to answer this way rather than construct a letter. 1) Do you believe the candidate can satisfy all the items on the person specification (see enclosed). 2) How long have you known the candidate (please provide dates). 3) In what capacity do you know the candidate (i.e. personal / professional). 4) Is the candidate subject to any formal investigation or formal action? If so please provide details. 5) (teachers only) Has the candidate subject to any capability procedures within the last two years? If yes please provide details. 6) Details of any Substantiated allegations or concerns that have been raised with the candidate that relate to the safety and welfare of children and young people and behaviour towards children and young people. 7) Are there any reasons why the candidate should not be employed by this school? 8) Please provide us with the number of days absence and the number of occasions over the last two years as well as timekeeping. 9) What was their reason for leaving? Please note that Southwark has an open reference policy, and if the person were to be appointed they would have a right to inspect their file and any references which may be placed there. I would be most grateful for your response as a matter of urgency to enable us to fulfill our duties under our safer recruitment policy. Many thanks for your help in this matter. Yours sincerely, <insert job title> Updated August 2014 Page 9 of 11

10 Enc. Job Description and response form Updated August 2014 Page 10 of 11

11 Appendix D Letter requesting reference from employer (after offer has been made) Private and Confidential <insert date> BY FIRST CLASS POST Dear Professional Reference Request for Successful Candidate - <insert name of candidate> I am pleased to confirm that we have offered the position of <insert position> at <insert school> and has a start date of <insert date>. Please find attached a job description and person specification. You are advised in order to protect the public, the post is covered by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 as amended by the ROA 1974 (Exceptions) (Amendment) Order You may therefore reveal information about convictions that would otherwise be considered as spent. Please could you answer the following questions and return it to us as a matter of urgency before the start date of <insert date>. Please note if we do not receive this within a week of the start date this is very likely to delay this individual starting employment with us. Question 1) Do you believe the candidate can satisfy all the items on the person specification (see enclosed). 2) How long have you known the candidate (please provide dates). 3) In what capacity do you know the candidate (i.e. personal / professional). Response Yes No Yes with training Date from Personal Professional Indicate relationship 4) Is the candidate subject to any formal investigation or formal action? If so please provide details. 5 (teachers only) Has the candidate subject to any capability procedures within the last two years? If yes please provide details. 6 Details of any substantiated allegations or concerns that have been raised with the candidate that relate to the safety and welfare of children and young people and behaviour towards children and young people. Yes Yes No No Updated August 2014 Page 11 of 11

12 Question 7) Are there any reasons why the candidate should not be employed by this school? 8) Please provide us with the number of days absence and the number of occasions over the last two years and comment on timekeeping. Response 9) What was their reason for leaving? 10) Your name and job title 11) Your signature We very much hope to hear from you shortly and thank you in advance for your assistance. If you would prefer to send us a letter please ensure you answer the questions above. If you have any queries please don t hesitate to give me a call on <insert number>. Many thanks for your assistance, please could you fax this to <insert number> or scan it in an it to <insert > together with a copy of your headed paper. Yours sincerely, <insert job title> Updated August 2014 Page 12 of 11