An offer made subject to references: what are your options?
You interview and find the right person. You make an offer and they agree to come. You know you do not have to take up references, but you realise it may be best to do so: another source of information and to confirm what they have told you about their history and how good they are. Their references are a big surprise, rather awful in fact. What can you do now?
Hopefully you will have made the job offer subject to references which are satisfactory to you. If so then the offer was conditional only, the condition is not satisfied and you can withdraw the job without breach of contract and liability. If the offer was not conditional, as soon as they accepted a contract was in place and you will need to pay them in lieu of a notice period.
First make sure that the references really do mean they are the wrong person. Not quite all employers are saints. Does the present employer have a good reason to be nasty? Do they want the employee to not get the job with you and so stay with them? Has there been a fall out that is not the fault of the employee? Or are you worried that the reference is just too short: this used to be worse than nothing as you wondered whatever it was they were so tight lipped about, but the briefest confirmation of the CV details is now regrettably common. So don’t necessarily be put off by a brief reference. If still in doubt consider following it up by ringing the employer to take up a telephone reference as this may give you much more idea.
If the reference is discriminatory in some way, beware. If it says, however kindly, that they are too old to be flexible, or too ill to be of use, or unpopular because of their sexuality, or take too much time off to look after children, be careful. If you turn them down for the job because of a discriminatory reference then you may be sued for discrimination yourself, with compensation for loss of earnings and injury to their feelings. Of course you do not have to employ them if you do not want to, but take careful advice before acting if the reason you have changed your mind may be viewed as discriminatory.
Subject to the discriminatory point though, you are allowed to decided for yourself, within reason, that a reference is not good enough and you will not take or keep the employee on. It is best to take up references before employment starts but, provided you clearly state that any offer is subject to you being satisfied with a reference, you can end the relationship just after it has begun if you are not satisfied by the reference they are given.
Many employers now choose to rely less upon a reference that they used to, and more upon their own recruitment and judgement. Even if references are not good, you could decide to take or keep a new employee on, see for yourself, and dismiss with notice well within the first year if you come to the view that you are better off without them. If they turn out to be wonderful you can applaud your own good judgement!
There is always a slight risk about ending a legal relationship with an employee, so take expert advice then go ahead and do what is best for the business.
More advice on the legalities and practicalities in respect of references can be obtained from Frances Barker, Employment Partner at Blocks Solicitors. Contact her on 01473 343911 or firstname.lastname@example.org
The above is general comment only and individual advice should be taken