Thursday, November 23, 2017
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Providing References for Ex-Employees

Two recent cases provide lessons to be learned when providing references.

In AB v Chief Constable (2014), A obtained a new job, which was conditional on receipt of a satisfactory reference. AB had been off sick for about six months, following the instigation of a disciplinary investigation into suspected misconduct. His Manager agreed to provide a standard reference and not to continue the disciplinary proceedings. The reference request sought details of AB's sickness record in the last 12 months, his reason for leaving and anything further that might be relevant. A standard reference was provided which confirmed the dates of employment, job title, that it was not the employer's policy to provide any further information and a disclaimer of liability for the content of the reference. The job offer was confirmed and AB resigned.

When the Chief Constable found out that a standard reference had been provided, he considered it misleading and wrote to AB telling him that he would be providing a further corrected reference with details of his sickness reference and the outstanding disciplinary allegations. AB issued legal proceedings and the Employer agreed not to provide the reference until the Court had ruled on the matter.

The High Court ruled that the Employer did not owe a duty of care to the new Employer to provide further information. A duty of care only arises where there has been an assumption of responsibility and since the first reference contained a clear disclaimer, a reasonable recipient of the reference would take it to mean that the Employer's policy was only to provide basic information and that it was not assuming any responsibility in relation to the giving of the reference or the accuracy of the information provided. Read as a whole, the reference was not misleading.

The High Court also ruled that the Employer could not provide details of AB's sickness record as this constituted sensitive personal data and AB had not given permission to disclose this information. The details of the disciplinary allegations were also personal data and had to be processed fairly. The Court concluded that it would not be fair for this information to be provided in circumstances where AB had been told that a standard reference would be provided and the disciplinary allegations discontinued and he had resigned in reliance on those assurances. The disclosure of details of the disciplinary allegations would therefore be unlawful.

In Jackson v Liverpool City Council (2011), a social worker left with some concerns about his work remaining un-investigated by the Organisation. A year after he had left, the Council were asked for a reference by Sefton Council.

Liverpool CC answered a question about the Employee's weaknesses by saying that there were some issues in respect of recording and record keeping which would have led on to a formal improvement plan to assist the Employee to make improvements in this area. A Liverpool CC representative also said on the telephone that the concerns had not been investigated. The social worker did not get the job with Sefton and remained unemployed for about a year. He sued Liverpool CC for damages for breach of its duty of care in relation to the reference.

The Employee lost in the Court of Appeal (CA), as the CA accepted that the reference was truthful and accurately represented the relevant facts. There were disciplinary issues, which were unresolved at the point when the Employee left. The reference made it clear that the Employee had left before Liverpool CC could investigate the allegations. In addition, the reference confirmed that, if the allegations had been investigated and upheld, they would have resulted in a performance improvement plan and not disciplinary action.

So what should an Employer do when providing references?

There is no statutory obligation for an Employer to provide a reference at all, but in most cases there is a duty of care to all ex-Employees and prospective Employers.

If it is the Organisation's policy to provide a bare reference it must behave consistently and do so for all employees. If there is a disclaimer of liability in a reference an Employer does not have to answer specific questions raised by a prospective Employer.

Employers must not give false, inaccurate or misleading references.

If there are outstanding allegations against an Employee that have not been investigated, then Employer must be careful to make it absolutely clear that the allegations have not been investigated and that no assumptions can be made.

Employers need to be careful about disclosing details of sickness absence, particularly about the cause of the absence, and other sensitive personal data when providing references. If they do disclose this information they must ask for the employee's explicit consent.

Employers should have clear internal procedures for giving references in respect of ex-employees. Subscribe to HR Companion now to download a copy of our Referencing Policy and Standard Reference Request Letter.