References

The issues

"I am often asked to provide a reference for people who leave my employment. I never considered this to be a problem, thinking it was just a simple case of sending off a few words - until recently. One of my staff is leaving to work for another company which sent me a three page questionnaire that looks very comprehensive. Are there any particular rules I should follow when putting a reference together? If I feel that a worker was less than perfect, do I have to declare this to his future employer? Do I HAVE to provide a reference? What if, as happened in one case, I discover after he has left that an employee was not quite honest? Should I pass this on when he is already in the new company?"

The Jewish Perspective

Many of us, either as a manager or 'boss', have been in the position of writing a reference for a departing colleague. But what used to be seen as a simple letter of referral has now become a potential legal minefield. Whilst there is no obligation to provide a reference, there are legal consequences for what is written if you do. The myriad of legislation that impinges on the area of employment law also touches upon the sensitivity employers need to evidence in relation to references. There is a very fine line between possibly slandering an employee by providing too much information and acting negligently towards the new employer by providing too little. An employee has the right to see a reference and can sue for a negligent or inaccurate one. Former employees have sued for slander and subsequent employers have brought an action where a person was recommended for an unsuitable post and their incompetence caused damage.

Because of the legal implications, employers nowadays write a reference that is purely factual, confirming the dates, salary and role of the person in question. To avoid some of the pitfalls associated with written references, many employers have turned to a telephone reference, feeling that a verbal reference would raise less concerns. But this is not strictly true, as if noted or monitored in any way, it would become part of the personnel file and thus protected under the Data Protection Act. Nicola Skentelbery, head of international recruitment at MWA says "...you need to judge what is a tangible fact or a personal, unsubstantiated comment." An alternative new method of assessment for new recruits comes in the form of a detailed questionnaire, which has been designed to ask skill-based, quality questions that should provide accurate answers. However, one managing director mourns the demise of the traditional reference. "It is important to appreciate how powerful a good reference can be."

The starting point from a Jewish perspective on the problems with references is "Keep away from false words". Whilst it is obvious that this prohibits telling untruths about another, Judaism in addition does not tolerate speaking badly about others - even if it is true. This is seen as a grave misdemeanor that causes spiritual harm to the person who speaks, the person who listens and obviously the person about whom it is spoken. However there is a general proviso that it is permissible - and even proper - to provide negative information about somebody when the information is needed for a constructive purpose. Seeking to avoid employing an unsuitable person would be a good example of this. However, when giving over negative information, it is not a free for all and five conditions must always be met. These conditions are enunciated in the classic work 'Chafetz Chaim' by Rabbi Yisrael Meir HaKohen of Radin, which when arranged alphabetically, acts as a useful aide memoire:

ACCURACY The information should not be exaggerated or embellished.
BENEFIT Disclosure itself should be the only type of constructive benefit.
CERTAINTY It should be ensured that the information is reliable.
DESIRE the teller's intention must be constructive, not vindictive.
EQUITY It is not equitable to protect the employer at the expense of the worker, so it would not be acceptable to cause undeserved damage to the subject.

Obviously it is relatively easy to verify certainty and accuracy, and whilst vindictive feelings are all too common in the workplace, a mature, honest person in a senior position should be able to overcome this in order to provide an objective letter of reference.

There are two main problems with relation to the "benefit" criteria. One is that information may sound important, but practically speaking will not help. For example, any facts that might have convinced the employer not to hire that person will generally not be constructive after she has already been hired. It is best in this case to remain silent, unless the employee's shortcoming is fundamental to the position, or severe. Subsequently discovering an employees dishonesty would probably fall under the latter. The other is where the same constructive result could be obtained without being unnecessarily forthright. For instance, where a former employee has a psychological disorder, which causes him to fall apart under pressure, it would probably be enough to state that he doesn't perform well under pressure. It is taken as said that much would depend on whether knowledge of a persons condition is vital for their ability to do the job, for instance where someone operating dangerous machinery suffers from epilepsy. Therefore some initiative and imagination are required in order to discern between information that is pertinent and issues that are irrelevant.

The "equity" rule is particularly difficult because once the information is revealed, there is no control over where it goes. For instance, if you tell a prospective employer that Joe has a criminal record, they may legitimately use this to avoid giving him a highly sensitive job. But if they decided to tell someone else about this, it would cause Joe undeserved humiliation. A dismaying complication is that it has been known for people to pose as a prospective employer in order to get former bosses or educators to reveal sensitive information, which they then use improperly. Obviously care must be taken that the information is being given to the 'right' person.

It is easy to convince ourselves that the information being provided is beneficial and impartial, but it is also important to consider carefully any possible consequences of this information being passed on. The criteria of the Chafetz Chaim should help strike a balance between the desire to help other employers make informed decisions, and a personal goal to save a former employee from any undeserved hardship or humiliation. It therefore emerges, that the most important thing is to balance the interests of both sides; if after careful thought you still cannot be sure that disclosure is justified, remember the old adages "silence is golden" or "the key to wisdom is silence" [Psalms?].

Giving an informative reference to a former worker can help both the worker and the prospective employer to make a productive and lasting match. But effort is needed to make sure that anything revealed does not turn out to be harmful.

Practical guidelines

• Try to get the permission of the person you are giving a reference for.
• Even when permission is forthcoming, try to verify that there is true informed consent.
• Don't be bashful with the organization asking for the reference! Be absolutely sure that the caller is a bona fide prospective employer. Make sure you know exactly what kind of job the person has applied for, so that you can censor any information which is irrelevant for that purpose. Specify that your comments are confidential. Don't allow yourself to be bullied by "procedures", such as the three-page questionnaire you received.
• Use functional descriptions so as to reveal the absolute minimum amount of negative information. If Joe has acrophobia, just say he may not be suitable for work at high elevations. If he has a criminal record, say that you can't recommend him for highly sensitive jobs.

Asher Meir