References – what are my obligations as an employer to both get them, and give them?

As an employer you will have sought references for potential employees and very likely been asked to provide them, but what are your legal obligations as an employer in the health and social care sector to obtain and give references?

You have obligations under both regulatory laws and employment laws, which must be carefully considered to ensure not only that you don’t fall foul of the law, but also that you take steps to ensure that vulnerable people are not exposed to those who may be unsuitable to work in the sector.

There is no absolute legal obligation for an employer to provide a reference for an employee or ex-employee. Employers should apply a policy on whether or not to provide a reference on behalf of the business as a corporate reference, who can provide a reference and what to include, and for this approach to be applied consistently. Failing to act consistently creates exposure to allegations of discriminatory treatment – which can include treatment after employment has ended – or a breach of trust and confidence.

Where an employer would prefer to not provide a reference for a particular individual, consideration should be given as to whether this is an inconsistent approach, where references are generally given by virtue of custom and practice for other leavers.

However, on the flip side, under Regulation 19 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (“Regulated Activities Regulations”) you are required to ensure that people you employ are fit and proper. This requires you to ensure, among other things, that the person is of “good character” and has the necessary “qualifications, competence, skills and experience” to perform their work and your recruitment procedures are effectively operated to ensure that persons meet these requirements.

As a registered provider, if an employee no longer meets the requirements or a previously requested but not forthcoming unsatisfactory reference is received after employment has started, then you must take action that is necessary and proportionate to ensure that the requirements are complied with.

Any action to terminate after employment has commenced should be considered in light of employment law requirements and best practice, or employers could risk Employment Tribunal claims. Ensuring job offers and contracts of employment explicitly state unsatisfactory references may result in termination is offers a safeguard.

Additionally, if the employee is a health care professional, social worker or other professional registered with a health or social care regulator – and that registration is required for the employee to do the work they are employed to do, or relates to the title that the person uses – you must inform the relevant regulator if they no longer meet the requirements. This will be particularly pertinent to, for example, nursing homes employing nurses.

Certain information must be available about employees, which includes information contained in Schedule 3 of the Regulated Activities Regulations. This includes satisfactory evidence of conduct in previous employment concerned with the services in relation to health or social care or children or vulnerable adults. Where a person has been previously employed in a position whose duties involved work with children or vulnerable adults, you must obtain, so far as reasonably practicable, satisfactory verification of the reason why that employment ended.

Careful consideration should be given by the referee to both the employee and prospective employer when balancing the duty of care owed to both when providing a reference. Would failing to include details of pending disciplinary proceedings at the time the employment ended amount to a breach of a duty of care to a prospective employer to provide a reference that is not unfair or misleading? Or would this compromise the duty of care owed to the employee or former employee to provide a reference that is true, accurate and fair?

Similar provisions apply to directors of corporate providers, including ensuring that the individual has not been responsible for, privy to, contributed to or facilitated any serious misconduct or mismanagement – whether unlawful or not – while carrying on a regulated activity. This includes if a service is provided outside of England but would be a regulated activity if it were provided in England.

Under the Safeguarding Vulnerable Groups Act 2006 you must not employ a person that has been barred from working with vulnerable adults or children. Additionally, providers are under a duty to refer a person to the Disclosure and Barring Service if the provider withdraws their permission for the person to carry on such work and thinks that person has engaged in particular behaviour or think “the harm test” is satisfied; defined under the legislation. A provider must also refer if they would have withdrawn their permission on the above basis, but the worker ceases to carry on the work, for example if they resign before having their employment terminated.

Whilst there is no absolute legal obligation to provide references, there are absolute legal obligations to ensure that people you employ are appropriate. Tensions can arise both when references are not forthcoming from previous employers as well as duties you owe both parties when providing references.