HRD talks to Sherridan Cook, Partner at Buddle Findlay, about the legal risks of offering someone employment
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What happens if an organisation offers someone employment and then finds out that their reference check has revealed something serious?
The risk there is that the candidate has already accepted the offer in which case you can’t withdraw it, according to Sherridan Cook, Partner at Buddle Findlay.
“Once they accept it under the Employment Relations Act they become an employee so you need to make the offer subject or conditional on the reference checks,” said Cook.
“So you would write into the offer that you will conduct reference checks and check other things like medical and criminal history. The employer should say they have to be satisfied about those before the employment will start.”
Cook added that if you do that before they commence the role then that conditional offer - even if it has been accepted - will come to an end.
“If though they have started employment then you would have to run a process because in that case you would be dismissing them,” said Cook.
“So you would have to put allegations to them that their criminal history check or their reference check didn’t come up that well and in some way they misrepresented their position.
“But if it’s just a reference check and they have commenced employment and the referee says Bob or Jane or whoever is a good employee but they have some issues then you are unlikely to be unable to dismiss them because you would not have enough justification.”
They would have already started working so you would then need to monitor their performance and see whether they the things being told during the reference check transpire and if they do then you could take action at that point, according to Cook.
“So the key message for the employer is do your reference checks before they start employment and make your offers conditional on the reference checks being completed to the employer’s satisfaction.”
