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Contacting referees without candidates' permission

30 June 2008

Source: WorkplaceInfo

Some prospective employers like to contact previous employers of job candidates without the direction or involvement of the candidates. Some issues need to be considered when this practice is followed.

WorkplaceInfo talked to Mike Toten, our HR consultant, to glean his views on this topic.

No prohibition

An employer is not prohibited from contacting referees if an applicant denies permission or does not request such contact. However, it is usually good practice for the employer to inform the candidates that this is happening.

Seek permission?

The preferred line of action is for the employer to seek prior permission to contacting referees from an applicant. There is no compulsion to do so, but it is generally recommended as best practice, eg in the context of privacy (plus, see examples below). Also, note that the candidate may not have informed the current employer of an intention to leave so you could be jeopardising the candidate’s current employment.

If a job applicant refuses to give permission to an employer to contact someone who provided a written reference, the employer is not legally prohibited from contacting the employer by phone.

There is naturally a reluctance to put much value on a written reference if the applicant does not want the referee to be contacted.

Options for employer

The options for the employer, here, could be:
Tell applicants that if they make the short-list it is normal company practice to contact any referees they provide, or contact past employers. Therefore, you are being honest, but not giving the applicant a choice.

If the applicant objects to that, and it is likely to affect chances of getting the job, say so and say why.

If it’s common practice to contact ‘someone who had worked with the applicant previously’ when the applicant has not nominated that person as a referee, it’s better to be up-front about it because it is preferable to be open and honest with all job applicants.

Make comments available to candidate?

Contacting referees ‘on the understanding that their responses would be available to the applicant, if requested’ is a risky thing to promise, especially if the referee wishes to remain anonymous.

Complications

Where things can get nasty is where the applicant is currently employed elsewhere and does not want the current employer to know he/she is looking for another job.

You might cause him/her a lot of embarrassment if you inadvertently contact someone who is indiscreet or ‘shouldn’t’ know he/she is looking. And that might be actionable if the applicant suffered a detriment. However, that situation can be avoided if the applicant has the opportunity to explain up-front why a person or organisation should not be contacted.

Another scenario is that if you contact the HR Dept and ask for the line manager rather than the name provided by the applicant, you may get someone who is less appropriate to make comments, eg he/she may have much less experience of working with the applicant, or there may have been a personality clash, discrimination, bullying, etc, and the person you speak to ‘has it in’ for your applicant.

Good practice

If you follow the various steps noted in the linked articles below (see Related), you should be able to verify the identity and suitability as a referee of whomever you speak to. If the scenario in the previous paragraph occurs, the applicant doesn’t get a chance to put his/her side of story until later, then you have the situation of having to discuss a bad reference with the applicant, and all the problems that that is likely to create for all three parties involved.

Being transparent might compromise the quality of information you get from referees – but both parties have their rights here. And it reinforces the basic point that references have their limitations – employers need to rely on all the information they collect about applicants via the various steps of recruitment/selection process. But if you choose judiciously from the list of behaviour-based questions in the third linked article below, you should end up with a fair sample of on-the-job behaviour and performance, provided the referee is qualified to assess it.

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