Dr Nick Riviera, for the non-Simpsons fans among us, is a fictional character in The Simpsons. Simpsons fans will remember his catchphrase “Hi everybody”. He is a stereotyped shady doctor who performs medical procedures for cash. Medical ethics go out of the window as does any regard for the wellbeing of his patients. In one episode, one Dr Nick’s former patients can be seen with a leg for an arm and an arm for a leg – an insight into some of the good Doctor’s handywork.
If you were Dr Nick’s former employer, would you give a reference to his prospective new employer? Bearing in mind that there is no general legal obligation to give a reference for ex-employees, would you be content with saying nothing and letting Dr Nick carry on ‘operating’ in the manner in which he does?
Many employers are familiar with the legal rules regarding references. Let’s recap on the basics:-
- There is no legal obligation to give a reference;
- If an employer does agree to give a reference, a duty of care arises to ensure that the reference is true, accurate and fair – it must not give a misleading impression and an employer who breaches this duty can be liable to the ex-employee for compensation);
- Many employers operate a general policy of giving only factual references with very basic details such as job title, start date and finish date.
What amounts to a misleading reference?
Case law has made clear that there is no requirement to give full chapter and verse about the employee. However, being selective in the provision of information could result in a misleading impression.
What about regulatory considerations?
If the employee is registered with a professional body which is responsible for protecting public safety and upholding the public confidence in a particular profession, does that throw up any issues regarding references? Potentially, yes. For example, in Dr Nick’s profession, The General Medical Council provide helpful guidance about writing references which can be accessed here – here.
Scottish Social Services Council (SSSC) regulates many social service professionals in Scotland. SSSC have Codes of Practice for both social service workers and for employers of social service workers. One of the obligations imposed on employers of social service workers is to ensure that people are suitable to enter the social service workforce. This is underpinned by a duty to seek and provide reliable references.
The law surrounding references is far from straightforward – take advice if you are in any doubt about what to say, or more importantly what not to say.