How legal is it when providing references to confirm dates, sickness and disciplinary ONLY? What about pending dangers for indirect discrimination due to references received?
For example, an employee of ours had 59 days of sickness/5 episodes but her performance was way beyond the average and, another employee had 3 days of sickness/1 episode but performance has been poor. Also, another had a disciplinary action against him but in total is a very good employee and others who had no disciplinary action have been performing just ok. How accurate such a reference can it be?
Is it legal to have a dual reference policy where one can give the accurate image for employers who performed well regardless of their sickness/disciplinary record and, just to confirm dates of employment/sickness/disciplinary record for those who didn't perform well?
I would appreciate your help on this one!
Thanks
Anastasia
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Replies (2)
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The Equality Act makes it unlawful for a potential employer to ask about health before a job is offered. As the intent of the legislation is to prevent selection from considering health (except for some limited exceptions such as determining what adjustments may be needed to accomodate a disability) this sort of information should not be being sought.
The best course is to not mention anything about sickness absence in a reference.
My understanding is to the contrary - number of absences and total hours can be included as factual information but reasons for absence are a no-no. Therefore as it's all factual the risk is with recipient using it incorrectly rather than with you supplying it
Would be helpful for some further clarification if my understanding is incorrect however.