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Verbal references….why you should always seek them, but think twice about giving them

Did you know that if the person you’re giving a reference to on the other end of the phone is making notes on your comments, your reference is probably going to be legally binding…. and you could be liable for defamation if you’re not being truthful?

Time and again we encourage myhrdept customers to take verbal references on potential recruits. People are so much more open on the other end of the phone than they are in writing, and if there are any niggling doubts after the interview these can be confirmed, or resolved by having an open conversation with a previous boss. An hour spent on referencing interviews can save a whole lot of pain and difficulty (not least for your HR Company) later down the line.

But there are legal pitfalls here for the person giving the reference – if notes are being taken, whether or not they know, these will often be admissible in any subsequent defamation proceedings. Defamation happens when person A says something untruthful about person B that is likely to adversely affect the reputation of person B. It’s easy to see how that could happen in the context of an employment reference, where careless or untrue references, overt or otherwise to a person’s trustworthiness or private habits (gambling, drinking etc.) might cause a new employer to withdraw an offer, causing significant economic damage to the employee, damage for which they may seek legal redress.

Consequently we have two pieces of advice about references.

If you are recruiting someone:

  • Always seek a verbal reference, make notes, keep a copy;
  • Ask relevant questions – any concerns you have from the interview process and your observations on what you think the candidate’s strengths are – the current or ex-boss will know more about these than you do;
  • Cover the general things too, as relevant to the role – last remuneration, bonus, appraisal score (and why?), attitude, attendance, flexibility, reliability, and the crucial question …… “would you re-employ this person?”;
  • Don’t always take references at face value – use your intuition. Has this person got a hidden reason for wanting to part company with the employee? Or are you hearing sour grapes because ‘their loss’ is genuinely ‘your gain’?
  • If you suspect a reference is ‘impossibly’ good (and this doesn’t stack up) ask for another referee (make sure it’s another boss) and repeat the process;
  • Always get permission from the employee/prospective employee BEFORE you take a reference, and preferably (to save time) ask them to set the call up for you.

If you are asked for a reference:

  • Never say anything untrue, or that could be construed as such
  • Never agree to a verbal reference, unless you’re happy to give a genuinely good one.
  • Never submit a written reference except to confirm employment dates from and to, and job title – certainly never say anything negative on a written reference if it is untrue, or open to argument by the employee.

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