Employment Law: Top Tips for References – What you can ask and what you can say

This summary is based on Judicium’s HR ‘Sofa Session’ from the 9th of November, with our resident expert Jenny Salero, LLB (Hons), L.P.C. This session focused on who references should be sought from to comply with KCSIE 2022; key questions you can and should ask when seeking references – including what you can ask about attendance, previous investigations and disciplinaries; the information that you should include in a reference to comply with KCSIE 2022; and what you can say in a reference and whether you can provide a bad reference.

Providing References

1. They must be true, fair and accurate.

• It is crucial when you’re providing a reference to stick to the facts such as things areas that can be evidenced, or documented and must be items the employee is aware of.
• We recommend avoiding personal judgements such as labelling someone ‘a difficult personality’. For example, what you can provide is how often the person was late if you have factual evidence to support it.

2. A reference can be negative.

• If you're providing an accurate and balanced view of the person, there is no reason you cannot provide what may be perceived as a negative reference, as long as you can document or evidence it.
• It’s important to be mindful that anything said isn't discriminatory, such as performance concerns linked to a disability.
• Also, you need to be prepared for any potential challenge or query from the individual.

3. Mark the reference as confidential.

• Make sure to mark the reference as confidential. This is important because it does mean that the reference you provide may be exempt from general data protection rules. NB: Your DPO would be able to advise you on the individual case.

4. Include a disclaimer.

• At the bottom of the reference additional wording can be added to explain that you are giving the reference in good faith based on all of the information that you had at the time, but neither the writer nor the employer accepts any responsibility or liability as a result or reliance being placed on it. This limits the organisation's exposure to any potential claims from an individual or potential employer.

5. Have policy on providing references.

• This will ensure consistent treatment across the board, but will also help staff internally writing references in regard to what to include. Everyone then knows what to expect.

6. Treat staff consistently

• Having a policy links to this tip – consistency. This prevents situations where you send out one or two lines for one individual, while sending a lengthy, glowing reference for a different member of staff.
• Ensure you are providing references that are consistent, while avoiding any potential pitfalls or complaints from staff moving forward.

7. Who will provide the reference?

• Ideally this should be set out within a policy, or at least internally known amongst senior leaders.
• KCSIE doesn't specifically say a reference must come from X, Y and Z, but it does say it must come from a senior leader with the authority to provide that reference.
• If the reference comes from somebody who is not a headteacher or a principal, the person receiving that reference should check with the headteacher or principal of the school that the reference is accurate in respect of disciplinary concerns.
• When constructing your policy on providing references, as a general timesaving tip, it may be easier for someone internally within HR or your SBM to write that reference and provide it to the head to sign it off and send it, to avoid the above supplementary questions.
• Also, if you send a reference from your work email address, particularly with a work signature, it's reasonable for the employer receiving it to interpret it as being a professional reference, even if it is written for a friend as a personal reference. In order to limit any liability for references we recommend personal references aren’t sent on employer email accounts.

8. Safeguarding

• KCSIE is quite specific about what should be included. Any reference should comment on the individual’s suitability to work with children and include details about any substantiated safeguarding allegations that satisfy the harm test.
• Any unsubstantiated, unfounded or malicious concerns should not be included in the reference. NB: Bear this in mind when you're thinking about who is aware of such issues and who is preparing the reference.

9. Disciplinary/Capability concerns

• If a live warning is on file in relation to either a disciplinary or capability concerns it is the employer’s duty to disclose it.
• If there is an ongoing process, perhaps a disciplinary investigation, or the individual resigns before the investigation reaches a conclusion, you may wish to disclose it.
• If there is a question about whether there is an ongoing investigation or if the person was ever subject to a disciplinary investigation, it’s important to answer accurately. An example may include stating there is an investigation going on, but the person resigned before it’s conclusion. Just because there is an investigation doesn't automatically mean the person is guilty of the misconduct or that any sanctions would be applied. However, the information you provide needs to be true, fair, and accurate. NB: If the question isn't asked, think carefully about what to provide in relation to investigations.
• Capability is similar, but if you have a live warning on file in relation to performance, you are required to disclose that in the reference. Going slightly further than this the School Staffing Regulations also make clear, that should you be specifically asked questions in regard to performance management the Governing Body (from a practical point of view this will usually be a member of SLT providing the reference) must provide details of any formal capability process from the previous two years., including how these concerns arose, the nature of the concerns and what was done to address these. This is likely to go beyond any current live warning, if it was expired due to the passage of time and improvement in performance.

10. Settlement Agreements.

• In this instance you must make sure you do what you have agreed. In either a settlement agreement or COT3, either document will include what was agreed with the employee. In the event you are asked for a reference, look at the specific wording to use, which was agreed as part of that process.
• Presumably you've reached a settlement with that individual for a particular reason so you don't want to be at risk of breaching that agreement by sending out something that is very different to what was agreed.
• If you're not sure what to do, seek advice from the person that helped you draft the settlement, and or speak to the individual to agree the details regarding what you will say.

Receiving References

Receiving the reference is a very important part of the recruitment process. Within education it is advised to obtain references before the interview process takes place. This enables you to ask any questions of the individual about any anomalies or any concerns received in a reference during the interview process.

1. Who should provide the reference?

• Ideally the headteacher or principal. However, when a reference is received from an alternative member of staff, you should contact the headteacher/principal to confirm the reference you received is correct.

2. When should you receive it?

• You should obtain references in advance of the interview process so you can discuss any discrepancies during the application process in the interview stage.

3. Where should the reference come from?

• You need one reference from the current/most recent employer. If they’re unemployed, you want to know the reason that the individual left that post from the referee.
• You also need to seek a reference from the last time the individual worked with children. If they haven't worked with children previously, or perhaps it's their first job you can accept a reference from another suitable source.
• For example, if it's their first job, you may see one from a university course. If they're a teacher who's done a placement you may receive one from a school where the placement took place.

4. Key areas flagged by KCSIE

• A few key things KCSIE flags is that you shouldn't accept references that are open, such as ‘to whom it may concern’.
• References shouldn't come to you by the applicant. You must seek those directly so they are verified.
• You should receive a minimum of two references. You want the reference to confirm the suitability of the individual to work with children and include a reference in relation to safeguarding.

5. Performance Management/Capability concerns

• You are allowed to ask if there has been any capability issues or concerns within the last two years.
• Under school staffing regulations, the school is required to answer and provide you with a summary of that information.

6. Disciplinary issues

• In terms of disciplinary issues, something you might want to think about is whether to ask if the person has ever been subject to an investigation?
• An investigation doesn't necessarily mean there was a formal case to answer to, there was a disciplinary hearing, or there was a disciplinary sanction issued. However, we quite often see carefully structured reference requests that ask about investigations so that they can capture all of that information when assessing suitability.

7. Attendance issues

• The Equality Act 2010 makes clear that you should only ask about attendance issues or health concerns after an individual has been offered a job. The reason behind this is to try to give everybody a fair opportunity to apply for a job and be assessed equally.
• You can ask questions in the application process such as “do you need any adjustments or support to attend this interview?”
• But you shouldn't be asking any questions about attendance records. Many schools post a health questionnaire to find out about any potential disabilities or ongoing concerns after offering to a candidate.
• If you find out the an individual’s attendance has been horrendous due to an ongoing concern or disability, what can you do? If you withdraw the job, you may open yourself up to discrimination claims. If you do have a similar issue, we suggest you seek advice before you withdraw any job offer.

8. Ensure offers are conditional upon receipt of satisfactory references

• Make sure the position you offer is subject to and conditional upon several things, including satisfactory references.
• Clarify in the offer that the references need to be satisfactory to your school and to that position. What one school may deem satisfactory, another school may not due to different requirements, views or even different roles.
• This provides you as the employer greater flexibility should any concerns arise.

5 Top Tips for Employers with Pregnant Staff 

1. Make sure the reference is true, fair and accurate.
2. Have a policy on providing references and stick to it.
3. Mark as confidential and for addressee when providing a reference.
4. Include a disclaimer
5. Only include concerns/issues the employee is aware of.

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