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.

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 from the candidate 

The preferred line of action is for an employer to seek an applicant's permission to contact referees. There is no compulsion to do so, but it is generally recommended as best practice, e.g. in the context of privacy. Also, note that the candidate may not have informed their 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 employers 

The options for the employer, here, could be: 

  • Tell applicants that if they make the shortlist it is 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 their 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 upfront about it. It is preferable to be open and honest with job applicants. 


Should reference comments be available to candidates? 

Contacting referees 'on the understanding 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 

Things can get complicated if an applicant is currently employed elsewhere and does not want the current employer to know they are looking for another job. 

You might cause the applicant a lot of embarrassment if you inadvertently contact someone who is indiscreet or 'shouldn't' know the applicant 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 upfront why a person or organisation should not be contacted. 

Another scenario is if you contact the HR department 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, e.g. they 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. 


Consider good practice 

You should verify the identity and suitability of a referee. If the scenario in the previous paragraph occurs, the applicant doesn't get a chance to put forward their side of the story until later. You then have the situation of having to discuss a bad reference with the applicant and all the problems that may create for all three parties involved.  

Being transparent might compromise the quality of information you get from referees – but both parties have rights. 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 the recruitment/selection process. But if you choose judiciously from the list of behaviour-based questions, you should end up with a fair sample of on-the-job behaviour and performance, provided the referee is qualified to assess it.