Why You Need References

If you are planning to register with a professional regulatory organisation and seek employment in your own or a foreign country, you will  require a minimum of two and usually three references from members of the same profession with whom you have worked recently.

The seniority of the referees selected will depend upon your own level of experience and regulation category but in general, more senior and experienced referees have greater credibility and should be preferred over less experienced referees. Some regulatory organisations require that you provide a reference from your current supervisor and most will restrict the validity of references to two to three years, meaning that it is essential that you maintain a current portfolio of potential referees and up to date references.

The references used for professional regulation can usually be used for job applications as well, as the criteria for registration, licensure and employment are similar in most professions. This saves time and duplication of effort. Before applying for jobs, you should verify the criteria for acceptable references and ensure that you can obtain these from appropriately qualified referees.

If you are working in a non English speaking environment and moving to an English speaking country, you will need to ensure that your referees have sufficient English language proficiency to complete reference forms or letters or enlist the assistance of a certified translator.

The Format of References - Forms and Letters

Many professional registration organisations and employers have standard reference forms which referees must complete. Whilst often time consuming and awkward to complete, these forms are actually very useful because they ensure that all relevant topics are covered and they facilitate easy comparison between individual references which helps to identify any areas of concern.

In circumstances where forms are not used, referees must draft and issue letters of reference on official stationery and then sign and date the reference. It is important to ensure that the referee addresses all salient aspects of the employee's work performance and behaviour so that the reference is not rejected.

Verbal references are often sought informally or as part of a formal process of confirming the validity and origin of a reference.

Must an Employer Provide a Reference?

It is a common misconception that employers must provide a reference for an existing or former employee. In fact, other than where a reference is needed by a regulatory body or there is a prior written agreement to provide a reference, there is no obligation on an employer to give a reference to an employee. However, it is rare for an employer to refuse to provide a reference. This is partly because it is good practice to do so and partly because of the adverse consequences a refusal would have on the employee concerned.

In regulated professions, such as medicine, dentistry and nursing, it is a requirement of regulatory organisations and most employers that the reference will be provided by a senior member of the same profession. References from human resources or management or executive officials or members of different professions are considered unacceptable except as certificates confirming employment.

The Responsibilities of a Referee

A referee has two duties: one to the future employer or regulator and one to the employee. On the one hand the referee must ensure that he or she mentions any facet of the employee’s capability or conduct that he or she thinks might be material to the future employer or regulator. On the other hand, the referee must take care that he or she does not paint too bad a picture of the employee so as to blight his or her prospects. In some circumstances these duties may appear to be incompatible, putting the referee in a difficult position between a rock and a hard place.

At the end of the day, referees must exercise care when preparing references and must ensure that all the facts on which the reference is based are accurate and that the overall impression of the employee is not misleading. A referee must not maliciously make false statements or negligently make a wrong statement.  Although a reference given by one employer  to another about an employee has qualified privilege, which protects employers from liability for untrue statements provided they ‘honestly believed’ in the truth of what they said, there are some limits to what they can say.

The Content of References

The response to a general request for a reference may contain nothing more than factual information about matters such as job description, length of service and reason for leaving. Often, though, prospective employers and regulatory organisations ask more specific questions about matters such as competence and character. It is established that referees owe a duty to former employees to take reasonable care over the preparation of references and ensure that the information provided is truthful.

The usual scope of references includes the following headings:

Referee Details and Declaration

1. Referee Details: a section for the referee to confirm personal and employment details, job title, qualifications, relationship to the employee and length of that relationship.
2. Referee Declaration: a declaration which the referee must sign confirming that the information provided is true and correct and may be disclosed to the regulatory organisation, employer and candidate.

Candidate Skills, Capabilities and Character

1. Technical knowledge and skills: knowledge, skills and ability of the candidate in the field of employment, ability to process information and make decisions, ability to access relevant information and identify major issues, willingness to assume responsibility, ability to maintain and develop professional knowledge.
2. Record Keeping: ability of the candidate to manage and document information.
3. Organisational Skills: plan, co-ordinate and complete administrative tasks, ability to handle pressure and/or a busy workload.
4. Communication and relationship skills: ability to demonstrate interpersonal skills with patients / clients and colleagues
5. Professional attitudes: ethical and professional behaviour, ability to manage an unusual or difficult situation, ability to adapt to new situations and cultural environment.
6. Fitness to practise: any mental or physical condition (including substance abuse or dependency) that may affect the applicant’s performance, any current or past disciplinary action or legal proceeding against the candidate, any other relevant issues
7. Strengths and weaknesses: the applicant’s main strengths and weaknesses / limitations and the applicant’s ability to recognise their own limitations and address them.

Unsatisfactory references

Poor Performance

Referees should consider carefully giving favourable references to employees who have been dismissed on the grounds that their work was unsatisfactory. Although they may have no wish to ruin the former employee’s future career just because the working relationship broke down, this could backfire if the employee then challenges the reason for dismissal in an action for unfair dismissal. 

One further point to consider is the case of an employer who recruits someone on the basis of a good reference that then turns out to be inaccurate and they suffer loss as a result. The employer may have to go through the expense of recruiting again, or could suffer loss through the incompetence or dishonesty of the employee. While it might be possible to pursue a case for fraudulent misstatement, where a referee has been careless, the new employer will have a potential action against the referee for negligent misstatement.

False and Inaccurate References

Referees who make false or inaccurate statements in references can damage a candidate's reputation unjustifiably and cause loss to the candidate who may be unable to obtain professional registration or employment or may be dismissed for having unsatisfactory references.

Referees may not be aware that a candidate has recourse to legal action. There are three possible courses of action available under the general common law category of ‘tort’, namely defamation, malicious falsehood and negligence.

Defamation and malicious falsehood

Where an inaccurate reference attacks the employee’s reputation, defamation is the most obvious cause of action. One element of a defamatory statement is its falsehood. If the maker of the statement wants to allege that the statement is true, then he or she has the burden of proving it is so. As mentioned earlier, in the context of job references, the referee will have the protection of the defence of qualified privilege.

Malicious falsehood protects a person from loss of business reputation. The employee has the burden of proving that the statement was made ‘maliciously’ that is defined as ‘calculated to cause damage.’

However, both malicious falsehood and defamation may prove inadequate due to the difficult task of establishing malice and the fact that an employee is looking for a remedy that will compensate him. The best course of action is to sue his former employer / referee for negligence. 

Negligence

An employer could be liable in negligence for providing an inaccurate reference as the employer has a duty of care not to make negligent misstatements. An employer who gives a reference about a former employee is under a duty to take reasonable care in the preparation of that reference and would be liable to the employee if the reference was inaccurate and the employee suffered loss as a result. The duty requires employers to take reasonable care and skill to ensure the accuracy of any facts that are communicated to the recipient of the reference from which he or she may form an adverse opinion of the employee concerned.

The Process of Obtaining References

References are crucial to successful applications for professional licences and jobs so it is advisable to prepare thoroughly in advance and ensure that you meet all the required criteria for the job or licence you seek and have referees who can confirm this and support you at each stage of your career.

1. Establish essential and desirable criteria for jobs and professional registration: obtain reference forms, sample references and details of essential criteria for regulation or employment from regulatory organisations and employers and define the key criteria for successful applications.
2. Self assessment: assess your ability to meet the required criteria in terms of technical skills, organisational abilities, communication and team working skills, problem solving abilities.
3. Strengths and weaknesses: identify strengths and weaknesses and create a strategy to address weaknesses and limitations to minimise their detrimental impact on job performance.
4. Enlist referee support: select referees with whom you work and get on well and ask for their appraisal of your performance and areas of weakness then ask for their help to improve.
5. Prepare referees: ask for references well in advance and don't spring last minute requests on people when they are unprepared and pre-occupied with other activities. Discuss the reference you need, the jobs you are applying for and give your referee sufficient time and information to write an excellent reference. If your referee is unhelpful or acts maliciously by making false statements, select an alternative referee or report the matter to the person more senior in the organisation than the referee and try to resolve the issue in your favour without the necessity of recourse to legal action which can be costly and time consuming.
6. Portfolio of referees and references: build a portfolio of supportive referees and glowing references who will act as your advocates for a successful career.

Candidates applying for jobs must have 2-3 professional referees who are willing and able to write letters of reference or complete reference forms. Should you have any questions about the references you need for a job application or professional registration, please contact us and we will endeavour to assist.