Reference checks – Part 1

Jun 6, 2018

Most employers, if not all, conduct reference checks on potential new employees, prior to appointing them. A question which is often raised is, what information may the old employer disclose about an employee to the new employer?
It is often possible to test job applicants for certain attributes that are necessary in some jobs. However, in terms of qualities such as honesty, reference-checking has always been the key screening technique.
3 problems with reference checks
An employer is saddled with the following three problems:

  1. South African Constitution.
  2. International Labour Organisation (ILO) Code of Good Practice, and
  3. Employment Equity Act.

In terms of Section 14 of the Constitution, everyone has the right to privacy. It could be argued that the employee’s performance in his job is not a private matter but rather a business matter. This may be true in the employee’s current job but performance in a previous job could well be seen as private.
The Constitution does not clarify this and no other legislation does this either. This means that employers need to be very careful when they take and give employment references.
4 points to cover when doing reference checks

  1. Get the job applicant’s consent before you check his references.
  2. The information the candidate gives you must be the truth.
  3. The referee must have a legitimate interest in giving you the information. For example, if a job applicant puts down his former manager as a reference, that referee must indeed be his former manager and not someone who is pretending to be the candidate’s former manager.
  4. The new employer must have a legitimate interest in receiving the information. For example, a candidate’s references can only be phoned if the new employer is considering employing him and  needs references on him to see if he can perform the role.

Most employers are vulnerable to employee dishonesty 
When hiring staff for, e.g. the finance department, obtain expert advice on how to devise an applicant-screening strategy. This strategy should detect dishonest tendencies in candidates but it must not infringe on the applicant’s constitutional and other legal rights.
Methods to be used to check references
1. Criminal check: This establishes if the applicant has a criminal record.
2. Financial check: During this process, the service provider finds out if the candidate has any recorded judgements, bankruptcies, etc., against him.
3. Driver’s licence check: Using this process, you would be able to check if the candidate has a valid driver’s licence. This is useful when driving will be part of his job.
4.    Educational qualifications check: Using this, you would be able to verify any qualifications that a candidate has obtained.
5.    Character references and verification of previous employment: Contact previous employers to gather information on:
–    A candidate’s previous employment and experience; and
–    His previous work performance and conduct.
Because it is very difficult to terminate the employment of unsuitable employees, the above pre-screening systems may be used in order to avoid hiring the wrong people.
In our next article, Part 2, we shall discuss the legalities and effectiveness of reference checking.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on or 021 556 1075 to speak to one of our consultants.


Wallace Albertyn

Wallace Albertyn is a Senior Associate and Legal Advisor at LabourMan Consultants.

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