Answering a phone call about a reference was all it took for two different employers to face discrimination claims. The recent case of Rajinder Pnaiser (see box, overleaf) should act as a cautionary tale to anyone who is thinking about discussing a written reference over the phone.
In this 2015 case, a job offer was retracted after the call discussed the candidate’s extensive sickness record. What was unfortunate for the past and potential employers was that the absences in question were linked to the candidate’s disability. What resulted was a costly lesson: there is no upper cap when it comes to discrimination cases.
References can land an employer in choppy waters, especially if an employer strays into the territory of opinion or speculation. In this particular case, lawyer Karen Moss, who acted as the counsel for Dr Pnaiser, says, ‘She was on the road to recovery. She wasn’t going to need the same time off work as in previous employment and that’s where the employment tribunal sympathised with her. They didn’t agree she wasn’t fit for the job.’
The lesson as far as Ms Moss is concerned? ‘Keep clear of verbal references. Provide the blandest of factual ones, which state where someone worked and for how long. Those willing to give more and risk civil litigation should ensure it’s a true and fair account of employment: not discriminatory in any way. It has to be factual.’ She adds that if you need to ask important questions about a prospective employee, ‘Make sure you write notes on what’s said and put it in an email.’
Human resources consultant Sandra Beale agrees. ‘Be careful what you say over the phone but also what you write too. In this case, sickness absences were skewed by disability and the employer shouldn’t have parted from an agreed written reference. They gave far too much information away,’ she says.
So how does this fit in with what Ofsted requires? In January, an inspector downgraded a nursery in Cumbria to ‘Inadequate’ after, in part, it failed to get references. The inspector’s report stated, ‘During the visit we found that the nursery was in breach of some requirements for the EYFS. For example, employment references for new staff are not always taken up, which does not protect children well.’
‘Most nursery owners believe that Ofsted requires them to seek two references [per employee],’ says HR expert Jacqui Mann. When asked to give an explicit clarification, the regulator, which receives its guidance from the Department for Education, says that other than DBS checks, there are no mandatory requirements but references ‘could be seen as good practice’.
A spokeswoman adds, ‘If a provider had not sought a reference, they would need to sufficiently demonstrate to the inspector that they were assured of an employee’s suitability through other means. If a provider has not fully assessed their suitability to work with or be in contact with children, it is likely to mean that safeguarding is not effective. The inspector, depending on the impact that decision has on children, may judge the provider as inadequate.’
Ofsted also explains where the guidelines come from: ‘The requirements in relation to recruitment and employment are set out in the EYFS, under the “suitable people” requirement. DfE, rather than Ofsted, is responsible for setting out these requirements. The EYFS sets out what a provider must do to support their decision that a person who is looking after children is suitable, but is silent on whether that process must include references… Ofsted cannot require them to seek references, although this could be seen as good practice.’
Ms Mann argues that the regulator needs to be clearer about what alternative evidence is acceptable.
She says, ‘If there is no mandatory requirement to [provide two references] but employers are required to provide evidence to inspectors to support their employment decision, it would make sense for Ofsted to give examples of what this evidence could be and what evidence would be deemed acceptable.’
Ms Beale agrees. ‘DfE has written down something and Ofsted has taken their lot from that. There is no definitive answer to this. There should be clear information in the original documentation from which they are getting their guidance to indicate what they [nurseries] should be doing.’
To add to the confusion, some in the early years agree with Ofsted that scanty information about candidates is a potential safeguarding issue. Early years consultant Laura Henry goes further and argues that all employers have a duty to consider the welfare of all children, even those not in their care. ‘We have a duty of care to pass this information on [to other employers]; we need to think about the welfare of children,’ she says. ‘After all, nurseries are also running a business. As business managers you want as much information about the person you’re employing as possible.’
Employers of existing candidates, Ms Henry says, could use information from their performance management records. They should ensure transparency, so that the candidate knows exactly what is being written about them, and these more in-depth references should slot into a jigsaw of other checks including a DBS and a trial period. ‘I make sure other checks are done too – I see what they have put out there on social media, especially with younger educators coming through,’ she says.
Eleanor Patel, director of recruitment agency Bamboo Childcare, says she too would like to see more detailed references. ‘I think a proper reference is required. How else do you know whether someone else is suitable for that position? It’s not just about the dates.’
She ensures all assertions from employers are backed with evidence by using a grid system of questions and answers when compiling information on job candidates.
‘Then, if there is something unsatisfactory, such as a candidate was late five times in three weeks, a note can be made under the area of punctuality. It is always subject to what a future employer deems acceptable; some have higher standards than others. So if you write a long reference, at least this way it can be backed up by facts,’ she says.
For many managers, this approach may not be practical. ‘No-one really has time to write in-depth references based on such records,’ says Ms Mann. ‘A majority of the time, references feature the basics. We will ask more questions [of employers if acting as a company’s HR department]. In practice, people who work in nurseries would be too frightened to say more.’
So how do nursery managers navigate all this? Clare Roberts, chief executive of Kids Planet nurseries, says, ‘We only provide factual references and not opinion: everybody who works in childcare has different standards. People are just too busy to provide anything else.’
When it comes to seeking references, she says her position is no different. ‘So much depends on how a candidate performs and the training they undergo, as well as the induction process and how you support them. That doesn’t mean references aren’t important, but they are really there to make sure someone has worked where they said they have.’
So however you decide to weigh up the pros and cons of giving references, remember to make sure you combine references with other elements of a robust recruitment procedure. Ms Beale lists these as ‘a robust interview process, DBS and safeguarding checks, a CV and a range of job-relevant questions at interview to establish what skills and experiences a candidate has. And ultimately whether they fit in with the team’.
She adds, ‘A reference can be a valuable insight, but be careful what you ask over the phone.’
PNAISER v NHS ENGLAND AND COVENTRY CITY COUNCIL
Former Coventry Council employee Rajinder Pnaiser was offered a redundancy package – which included an agreed, written reference. She had a medical condition, which meant that she was covered by the disability section of the Equality Act 2010. Her condition had led to time off work.
Some time later she was offered a new role at NHS England, though the interviewer wanted to discuss her reference with the previous employer, over the phone.
Her former employer at the council told the prospective employer that Dr Pnaiser had had significant amounts of time off work and that she did not consider Dr Pnaiser suitable for the role in question. She implied that Dr Pnaiser’s sickness absences had adversely affected her performance.
An Employment Appeals Tribunal found Dr Pnaiser had been unlawfully discriminated against by Coventry Council and NHS England, citing the negative reference from the former and the withdrawal of the latter’s job offer. Both claims succeeded under Section 15 of the Equality Act 2010.
