Schools and staff waste hours on references for departing teachers that at best can be described as ambiguous. Do you tell the truth (“we’ve been trying to get rid of him/her for some time”) or should you move to a standard reference form?

I recommend her unreservedly; I commend him for your consideration; you would be lucky to have him work for you.”

Headteachers want persistently underperforming teachers to “develop their career elsewhere” but an honest reference to a new employer will prevent that relief. And so begins the game of ambiguous reference writing: talking about the school’s context and successes, talking about the quality of relationships in school, ignoring the quality
of teaching.

To penetrate this fog many schools ask the referee to complete a proforma questionnaire directly asking about teaching, punctuality, behaviour management, disciplinary, capability and, of course, safeguarding.

Even this is not guaranteed to work. Just this week a client school had to remove a poorly performing teacher after a term. She had been described by her referee as an outstanding teacher. A few weeks ago the referee bumped into the current head, saying that the teacher had been a nightmare and that they had tried to get rid of her for some time!

The focus should be on devising better recruitment assessment tools

In that case, my client could sue the former school AND its head for damages for misrepresentation, which would include all the costs of dismissing the teacher and recruiting a replacement.

My client could also refer the referee to the National College for Teaching and Leadership for a breach of teachers’ standards and to the Education Funding Agency for breach of the Nolan principles applying to accounting officers.

The referee had avoided taking formal capability proceedings so was not under the obligation, introduced by Michael Gove, to disclose to my client details of formal capability on request.

Gove’s reform was intended to remove poor performing teachers from the entire system. In reality, heads use the threat of moving from an informal to a formal process as a means of opening up discussions for agreed departures by way of settlement agreements.

The Gove obligation does not apply to informal capability processes or disciplinary misconduct issues. A recent High Court case strongly suggested that public sector referees owe a higher duty to recipients and should include details of formal disciplinary warnings and disciplinary proceedings averted by a convenient resignation. At the very least, schools must always disclose a gross misconduct dismissal and any resignation to avoid such a dismissal.

Referees can also be sued by the subject of a reference if an inaccuracy leads to a lost job, even if the reference is given over the phone.

Under the Data Protection Act, the subject of a confidential reference can approach the referee and the receiver for a copy. The referee can safely decline this request but the receiver has to balance the interests of the referee with those of the subject. In cases where a job is denied, the pressure to disclose to the subject will be great.

To reduce the risks of being sued by the referee, I advise clients to add the following wording to all references: “We will not give oral references in person or by telephone and nor complete pro forma questionnaires or answer written questions. We will not analyse the job description for the proposed role or comment on the content of the candidate’s job application.

“The information provided in this reference is given to the addressee in confidence and in good faith solely for the purposes for which it was requested and on the understanding that neither its author nor the school accept any responsibility for any errors, omission or inaccuracy in the information or for any loss or damage that may result from reliance being placed on it.”

This disclaimer cannot protect against damages for deliberately providing false information and offers no protection against a claim by the subject of the reference.

The only way to eliminate the risk of a claim by the subject is to share it with them beforehand for approval.

Given the time wasted preparing references and second-guessing them, the profession should move to a standard form reference dealing just with salary, job title, duties, safeguarding issues, formal capability processes and dismissals/resignations for gross misconduct. The focus should be on devising better recruitment assessment tools rather than putting faith in a referee with an ulterior motive.