Sabotage: Negative references

You’ve interviewed the perfect candidate.  They gave all the right answers, they have the skills and experience you need and they’re going to fit right in.  So you do your usual processes, contracts, medicals, and reference checks.

But what if the reference check is negative?

They are unable to handle pressure.

They have difficulty prioritising tasks.

They’re emotional.

Unreliable.

They cause a lot of drama.

Phew! Got out of that one quickly, right?

But what if the candidate reveals to you that they had brought a bullying claim against their previous line manager so the check would likely be negative? Or they disclose that they have mental health issues?

Is there a legal risk if you reject the candidate?

Or is it just….sabotage? Whhhhyyyyyyyy? [Thanks Beastie Boys]

What are the legal risks?

Discrimination law extends to job applicants, not just existing employees.  If the behavioural concerns are a result of a protected characteristic under discrimination law, such as disability, and an employer rejects that candidate for that reason, then this could potentially be disability discrimination.

Direct disability discrimination is treating someone less favourably on the grounds that they have a disability as compared to someone without the disability in circumstances that are not materially different.  Further, disability discrimination is when an employer does not make reasonable adjustments for the person with the disability and the failure to make those reasonable adjustments has the effect that the person with the disability is treated less favourably in circumstances that are not materially different.

Indirect disability discrimination is when an employer requires everyone to comply with a requirement or condition, but because of the disability the person does not or is not able to comply and the requirement or condition has or is likely to have the effect of disadvantaging persons with the disability.

Disability discrimination also extends to a person who has an associate with a disability.  An associate can be a spouse, including de facto spouse, relative, carer or another person in a business, sporting or recreational relationship with the person.

Disability means a total or partial loss of the person’s bodily or mental functions, total or partial loss of a part of the body, the presence in the body of organisms causing (or being capable of causing) disease of illness, malfunction, malformation or disfigurement of a part of the person’s body, a disorder or malfunction that results in a person learning differently, or a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

This includes a disability that presently exists, previously existed but no longer exists, may exist in the future or is imputed to a person.  This also includes behaviour that is a symptom or manifestation of the disability.

What can an employer do?

Firstly, what are the behavioural characteristics of the role you are hiring for? Does it require someone who is able to handle a high pressure situation with competing tasks? It is important to be clear about what is required for the role and ensure that the questions you ask of the referees do not inadvertently result in disability discrimination.

Secondly, is the reference genuine and fair? Is this an accurate reflection of the person’s performance in their previous role? Or is it sabotage by a disgruntled previous line manager? Would an additional referee assist?

Thirdly, if there is a medical condition, there needs to be clarity about which characteristics or behaviours are due to the medical condition and whether there are any reasonable adjustments that could be made.

Finally, this is a tricky area.  It may be worth seeking legal advice on this topic and ensuring that records are kept of any decisions that are made.

Otherwise, a candidate could bring a disability discrimination or general protections claim.  Or else you risk them telling everyone it’s a “sabotage”.

Remotely Legal can assist employers and boards on all aspects of employment law, including advising on difficult people issues, reviewing policies and assisting with enterprise bargaining.  Remotely Legal can train your boards and management teams on how to deal with incidents and investigations.  Remotely Legal can also be your fully outsourced HR and people legal team.

RL Investigations, part of Remotely Legal, are a team of highly experienced and qualified lawyers and investigators, who can function as your independent, external investigation team providing fast, comprehensive and reliable investigation reports, workplace culture reviews and suggestions for organisational improvement. RL Investigations can also help your internal HR or investigation team to improve their investigations and assist decision makers in considering the right factors when making key decisions.

This blog is general advice only.  Please obtain legal advice in relation to your specific circumstances.  This blog was written by a human so please seek permission if you wish to copy any of it.