verbal referenceThe answer is yes.  There has recently been a tribunal case which involved a verbal reference.

A member of staff suffered from a medical condition which consequently resulted in her having a lot of time off work.  The medical condition was covered by disability under the Equality Act 2010.

The member of staff applied for a new position, after being made redundant, and was offered the role. The prospective new employer was not satisfied with the written reference provided so decided to phone the previous employer.  The person he spoke to said she could not provide details of the employee’s sickness absence record.  However what she did say was ‘the employee had taken significant periods of sickness absence so it was difficult for her to judge whether she was suitable for the role.’

On the basis of the telephone conversation the job offer was withdrawn. The prospective employer claimed there were other reasons.

The prospective employee then brought 2 claims, one against her former employer and one against her prospective employer.

The claims were

  • the giving of the negative reference which was unfavourable treatment which arose in consequence of her disability; (former employer)
  • the withdrawal of the offer was unfavourable treatment arising in consequence of her disability. (Prospective employer).

Both claims succeeded.

Often when you receive a reference it only contains the bear minimum of information and is not really very helpful.

More and more employers are deciding to request a verbal reference, sometimes it can prove difficult to gain a reference as there is no legal requirement to provide one. With a verbal reference you may be given more information about the new employee.

The main problem comes down to the fact that you don’t really know who you are talking to.  You need to make sure you are in control of the situation. Consider:

  • who will provide the verbal reference
  • what questions will you ask
  • how will the reference be recorded

If you withdraw a job offer on the basis of a verbal reference, you will need to provide the contents of that verbal reference to an Employment Tribunal. If it is linked to one of the nine protected characteristics under the Equality Act 2010 then you may find yourself facing a discrimination claim. Verbal references can be helpful but you do need to be aware of the potential risks involved and what the potential consequences are.  Remember there is no cap on the compensation for discrimination claims.

Have you read our 41 Things Every Employer Needs To Know?  Download it here.