advo’s HR consultancy gives guidance on employee references and legal responsibilities.
At HR-Experts we are often asked about how to respond to reference requests from other employers. While other companies may ask you all sorts of questions about former employees, you need to be careful how you respond. Don’t openly answer everything as the wrong answer could give rise to a claim. For example, if you are asked details about a person’s sickness absence, under Data Protection legislation you must not give any sensitive personal data (which includes physical or mental health information) without the individual’s express consent. It is safer therefore either to ignore any questions about sickness absence, or alternatively just give factual information about the number of days’ absence in any particular period.
Assuming you also ask for references from previous employers, please make any offer of employment conditional on the receipt of references that are “in the company’s opinion, satisfactory”. Do not leave the “opinion” wording out as this will prevent you having the final say on whether a reference is satisfactory and could cause difficulties if you later on want to withdraw an employment offer.
And finally, on the subject of employee reference checks – there may be occasions when in carrying out your “proof of right to work” checks on new employees, you encounter problems in obtaining the correct documents as set out in the Home Office checklist
As you know, it is unlawful to employ a person who doesn’t have the legal right to work in the UK. You may have employees who need to make an application to the Home Office for “continued right to remain”. Provided they do this before the expiry of their existing visa they will continue to have the right to remain in the UK and, where permitted, to work. This remains the case until a final decision on their visa renewal application process in reached, which can include an appeal process. However, as the Royal Mail found last year in Nayak v Royal Mail Group Ltd , some employees do not co-operate in providing you with relevant documents to prove that their visa application is still being considered, and the Home Office will not normally provide information about a person’s immigration status to a third party. In this case Royal Mail dismissed Mr Najak because they genuinely believed that he no longer had the right to work in the UK. Mr Nayak brought a claim, but was unsuccessful. This type of dismissal is called a for “some other substantial reason” dismissal. If you think this could apply to you, please ask us for guidance.
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