This article originally appeared in People Management Online.
References are a notoriously tricky area – if the comments are too positive, they risk claims from future employers, and if they are too negative, they risk claims from ex-employees. This is one reason why many employers have a policy of sticking to the bare minimum of information and giving only dates of employment and job title. However, a recent case may provide a glimmer of hope for those who want to give more information.
Previous case law has established that employers owe a duty of care when giving a reference and therefore should ensure that the information they provide is fair, factual and not misleading.
In the case of Jackson v Liverpool City Council, Mr Jackson was a social worker who had worked for Liverpool City Council in its youth offending team. He left to take a different position with Sefton Borough Council and received good references from Liverpool. He then later applied for a position within the youth offending team at Sefton which meant Sefton took up references again.
This time the reference from Liverpool said that there had been some issues with Mr Jackson’s record keeping. However, it made it clear that these concerns had not been investigated before he left. The written reference was also followed up with a phone call from Sefton in which the manager at Liverpool had explained that she couldn’t answer questions about the issues “in either a positive or a negative manner.”
As a result of the reference, Sefton did not give Mr Jackson the job, and he was then unemployed for a year. He argued that Liverpool had given an unfair and therefore negligent reference, and that they should compensate him for his losses.
The Court of Appeal examined the question of what ‘fair’ means in this context. From one perspective, it was clearly unfair that allegations were being made about Mr Jackson without him having an opportunity to respond. However, the reference had made it clear that this was the case. It had also made several positive comments about Mr Jackson’s timekeeping, honesty and integrity.
The Court of Appeal found that although they sympathised with Mr Jackson, Liverpool could not be criticised for the reference which had been provided. The reference had made it clear that the allegations had not been tested, and it was true and accurate. Therefore in the circumstances it was fair.
This case means that employers can pass on information about issues with former employees, provided that it is true and accurate. This is best exercised with caution, as it is very important that the details given are fairly presented, particularly in telephone references. References in some areas of work (such as financial services) may need to be full and detailed in order to meet other legal or regulatory requirements. For employers in other fields, although this case may be of some comfort, many will still want to minimise the risk by giving only basic references.
Are you dealing with reference issues? 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])