When people move jobs, prospective new employers often ask the employee’s former employer for a reference. The person giving the reference is under a duty to both the subject of the reference and the recipient, i.e. the prospective employer. That duty is not too onerous, but does require the reference to be factual and not misleading. The reference should also not be discriminatory, as the right not to be discriminated against applies just as much to former employees as it does to current employees (and also prospective employees).
If an employer unlawfully discriminates in a reference for a former employee, the consequences can be severe. If the former employee loses a job offer because of a discriminatory reference, then the person giving the reference, as well as the organisation on whose behalf it was given, can be held liable for the losses suffered by the former employee. As with all discrimination claims, compensation is not capped, so the on-going losses can be very significant. Indeed, I was involved in just such a case some years ago, and the person giving the reference and his employer were ordered to pay over £300,000 compensation to the person they were found to have discriminated against.
In the recent case of Mefful v Citizens Advice Merton and Lambeth (2017), an Employment Tribunal had to rule on whether a reference given to a prospective new employer of Mr Mefful was discriminatory. Mr Mefful worked for Citizens Advice from 2004 until he was made redundant in 2012. He was then unemployed for a period until he obtained a new job in 2015. This new job was subject to satisfactory references. Mr Mefful was disabled, and during his employment with Citizens Advice he had taken a few periods of absence due to his disability. However, in the reference provided to Mr Mefful’s new employer, the periods of absence were inaccurate and significantly overstated. The reference also said nothing positive about Mr Mefful’s 8 years of employment at all, and stated that Citizens Advice would not reemploy him.
The Employment Tribunal ruled that Citizens Advice had subjected Mr Mefful to a detriment because of his disability. Mr Mefful’s new employer had withdrawn the job offer because of the reference, so Mr Mefful’s losses, and therefore compensation, may well be significant. At the time of writing the Tribunal has not dealt with the question of compensation.
The moral in this case is simple. There is nothing wrong with giving a reference, and indeed employers rely on them when employing people. However, when giving a reference, it is important to make sure that your facts are correct, and that the reference is not dishonest or misleading.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).