Why stretching the truth in references is a legal minefield

Four in 10 schools admit to pulling punches in references – but experts warn of potential legal pitfalls

“I have never lied in a reference,” David Frederick says. “I have never been lied to. But that doesn’t preclude stretching the veracity. Regularly.”

Mr Frederick (whose name has been changed because he is still in a reference-writing position) is the headteacher of a West London secondary. And he is unequivocal about the dark art of writing and reading references.

“It’s an exercise in reading the text in the truthful sense of the word but also in the post-modern sense of the word – deconstructing it,” he says. “You absolutely cannot take references solely at face value. If you do, you’re going to become the victim of a sophistic manoeuvre.”

A new survey, conducted by the law firm Winckworth Sherwood, finds that 39 per cent of schools take a liberal approach to the truth when writing references for members of staff. James Lynas, employment partner at the firm, commissioned the poll to back up his own experiences of legal cases involving school references. He hopes that it will highlight to school leaders and others the pitfalls around writing and reading references.

“Anything related to child protection or safeguarding has to be disclosed,” he says. “The difficulty is other kinds of misconduct issues – for example, a teacher fiddling expenses. Or saying on Facebook that your headteacher is a swine. My favourite was a senior leader planting a bugging device in the headteacher’s office.”

He pauses. “The question is: how much do you disclose in references?”

Each element of a reference is governed by a different set of legal requirements. The first element is the disclosure of straightforward factual information: how much candidates earn, what their absentee levels are, and whether future employers should have any concerns for the safety of children in their care.

Then there are the sections of the form that ask referees to rate candidates from “poor” to “outstanding” on a range of skills.

“If you tick ‘outstanding’ in all those boxes, it will be felt that you’re lying in order to get rid of someone,” Mr Frederick says. “I will look for somewhere I can give them a ‘good’.

“Or you might have someone who isn’t very good. Someone who wants to leave, and who you want to leave. You don’t want to damn them excessively. You think: ‘Is there anything I can eke out to a “good”?’”

Pulling the punches

This is echoed by Mr Lynas. “You can normally spot a reference that’s pulling its punches,” he says. “One of the big clues is: does it say anything about teaching and learning?”

For example, candidates might be rated “outstanding” for their enthusiasm or their ability to get on with colleagues, but only “good” in their ability to control a classroom.

Finally, there is the prose statement. “Never write anything that’s overtly negative,” says Mr Frederick. “Not with freedom of information. But the negativity will come into play by what’s unsaid, rather than what’s said.”

This applies equally at leadership level, according to Malcolm Trobe, interim general secretary of the Association of School and College Leaders. “It will say how good their administration is, their timekeeping, their commitment to the job,” he says. “And nothing about leadership.”

But there are legal considerations, too. “If you have cautionary comments to make, you have to have evidence for them,” says Mary Bousted, general secretary of the ATL teaching union. “But, if you fail to give an honest reference and a truthful reference, that’s legally dangerous.”

Mr Lynas cites the example of a client who complained that his new headteacher – who had arrived with an outstanding reference – was nothing but trouble. The client and the referee knew one another; at some point, the referee asked how the new head was getting on, “because he’s an absolute nightmare”.

“The new school could have sued the old school for misleading information,” Mr Lynas says. “You’re not just omitting concerns but actually hiding them.”

Warning signs

Enthusiastically recommending an unsuitable candidate helps neither the school nor the teacher, according to Dr Bousted. “If there are issues around someone’s performance, that should be dealt with by the current employer,” she says. “It’s not fair to pass on a personnel problem, or to recommend someone for a job they’re not equipped to do.”

In the Winckworth Sherwood survey, almost a third of the 67 schools questioned had hired staff, only to subsequently find clues in the references that should have given them cause to hesitate.

Mr Frederick is among those to have inadvertently hired a teacher only to detect the warning signs in hindsight. “I went back, and everything that was put in those tick-box configurations was true and could be defended,” he says. “Heads have spent years writing school reports. They’re sugaring pills and cushioning blows constantly. But writing it is not the same as reading it.”

@adibloom

What a reference says… and what it really means

According to employment lawyer James Lynas:

“I recommend this person unreservedly” means, “This person is great – give them the job.”

“I commend them to you for consideration” means, “By all means give them the job, but caveat emptor, my friend.”

“You’d be lucky to have this person” means, “You’d be lucky if this person turned up and did the job you’re hiring them to do with any level of competence.”

This is an article from the 6 May edition of TES. This week’s TES magazine is available in all good newsagents. To download the digital edition, Android users can click here and iOS users can click here

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