• Facebook
  • Twitter
  • LinkedIn
Call us now: 01243 836 840   [email protected]
Pure Employment Law
  • Who We Are
    • Nicola Brown
    • Peter Stevens
    • David Jones
    • Debbie Poole
    • Linda Nye
    • Brenda Cherry
  • For Employers
    • Advice on HR and People issues
    • Investigations, Hearings and Appeals
    • Restructuring and Redundancy
    • Defending Employment Tribunal Claims
    • Dismissal of Senior Executives
    • Contracts, Handbooks and Policies
    • Employment Law Training
  • For Employees
    • Settlement Agreements
    • Workplace Issues including Disciplinary and Grievance
    • Bringing an Employment Tribunal Claim
  • Employment Law Events
  • Legal Updates
  • Testimonials
  • Vacancies
  • Contact us
  • Search
  • Menu Menu

References – useful guidance for employers

21st August 2018

The question of references is still a thorny one for many employers. In a large proportion of the cases we deal with, references tend to be limited to the basic factual information (start date, end date, job title). This is often because employers don’t want to risk being sued for giving a poor reference (or one that’s excessively positive either!). However, the ‘bare facts’ approach doesn’t work in fields where fuller references are expected or required, such as in education, care work or other regulated environments. It is a popular misconception that “you can’t give a bad reference”. In fact, if you don’t give a bad reference when the situation merits one, particularly in a regulated environment, that can cause significant problems.

In the recent case of Hincks v Sense Network, the High Court was asked to consider a situation where a reference specifically mentioned findings from an investigatory process, yet that process had arguably been conducted unfairly. Was the reference negligent as a result? The judgment set out some very useful guidance for employers.

Facts

The case involved a regulated environment, because Mr Hincks’ role was to sell financial products. He was working for a company called CIFS as an independent financial advisor. CIFS didn’t have their own FCA authorisation, but were covered by an umbrella body called Sense Network. A transaction in 2014 was called into question from a regulatory point of view, and Sense Network requested Mr Hincks’ attendance at a meeting. He was not given any details of any charges or allegations prior to the meeting. After the meeting, Sense Network terminated Mr Hincks’ authorisation to act as an independent financial adviser. He was given a right of appeal, but his appeal was not upheld.

When Mr Hincks subsequently applied for roles elsewhere, the firms were required to take up references from Sense Network. Sense Network’s reference was written by the same person who had conducted the investigation meeting and made the decision to terminate the authorisation. It was a particularly negative reference and said (amongst other things) that “it was reasonable to conclude that he had knowingly and deliberately circumvented the agreed process.” Mr Hincks said that the reference had killed off his prospects of finding another job as an independent financial adviser.

Mr Hinks argued that the reference was negligent and that Sense Network should be required to compensate him. He raised a number of points about the fairness of the process, in particular that a proper investigation had not been carried out, he had not had an adequate opportunity to defend himself against the allegations, and the meeting had been carried out in a “harassing manner.” He argued that the reference had to be negligent if the person giving it had not satisfied themselves that the investigation had been carried out fairly.

The Court’s decision – and useful guidance for employers

The Court did not agree with Mr Hincks’ arguments, and said that if his case succeeded in establishing an obligation on writers of references to check the procedural fairness of investigations, it would cause problems for the whole system of the giving and receiving of references.

However, the Court took the opportunity to set out some key features of the duties that fall upon someone who is giving a reference:

“a) to conduct an objective and rigorous appraisal of facts and opinion, particularly negative opinion, whether those facts and opinions emerge from earlier investigations or otherwise;
b) to take reasonable care to be satisfied that the facts set out in the reference are accurate and true and that, where an opinion is expressed, there is a proper and legitimate basis for the opinion;
c) where an opinion is derived from an earlier investigation, to take reasonable care in considering and reviewing the underlying material so that the reference writer is able to understand the basis for the opinion and be satisfied that there is a proper and legitimate basis for the opinion; and
d) to take reasonable care to ensure that the reference is fair, by not being misleading either by reason of what is not included or by implication, nuance or innuendo.”

The Court also noted that if there had been a “red flag” that justified further examination of the fairness of the process, that might have put an obligation on the referee to look into things further. However, no such “red flag” had existed in Mr Hincks’ case.

Conclusion

The guidance given by the Court in this case will prove very useful to employers who are required to provide ‘full’ references. My usual rule of thumb is “fair, factual and not misleading”, which is still a useful summary, but the Hincks case breaks that down and expands upon what that means in practice.

By employment law standards it does seem that Mr Hincks was not treated fairly, but of course he wasn’t an employee of Sense Network, and therefore different standards applied, which I think was a highly relevant factor in the Court’s decision.

If you are in doubt regarding a reference, it is always best to take advice. We have years of experience at advising on issues around references and are happy to help.

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]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.
Share this article
  • Share on Facebook
  • Share on Twitter
  • Share on WhatsApp
  • Share on LinkedIn
  • Share on Reddit
  • Share by Mail
https://www.pureemploymentlaw.co.uk/wp-content/uploads/2019/02/170886476.jpg 1000 1000 Nicola Brown https://www.pureemploymentlaw.co.uk/wp-content/uploads/2019/02/Pure-Employment-Law-logo.jpg Nicola Brown2018-08-21 08:44:072019-02-06 17:02:01References – useful guidance for employers

Join our mailing list

* = required field
Mailing Lists


Recent Legal Updates

  • Can long Covid be a disability? 29th June 2022
  • Employer unfairly counted disability-related absences when dismissing 29th June 2022
  • Did an Employment Tribunal correctly award an uplift for failure to follow the ACAS Code in a sham redundancy case? 29th June 2022
  • Without prejudice negotiations – what is unambiguous impropriety? 29th June 2022
  • Does referring to a man’s baldness at work amount to sexual harassment? 25th May 2022
Link to: Contact Us

Any questions? Why not get in touch!

Our advice is always given in plain English without any waffle, and we focus on providing practical solutions to our clients’ problems.

Contact us

LEGAL INFORMATION

Pure Employment Law | 1 Little London, Chichester, West Sussex, PO19 1PH
[email protected] | Tel: 01243 836840

Pure Employment Law is the trading name of Pure Employment Law Limited, registered in England and Wales with company number 07134294 and whose registered office is 1 Little London, Chichester, West Sussex, PO19 1PH. Pure Employment Law Limited is authorised and regulated by the Solicitors Regulation Authority with registration number 533794. A list of the company’s directors is available for inspection at the registered office

DISCLAIMER

The information contained in this website is for general information purposes only. The information is provided by Pure Employment Law and while we endeavour to keep the information up to date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the website or the information, products, services, or related graphics contained on the website for any purpose. Any reliance you place on such information is therefore strictly at your own risk.

Privacy Policy | Cookies Policy | Terms & Conditions | How to make a complaint | Sitemap

© Pure Employment Law 2022

Scroll to top

This site uses cookies. By continuing to browse the site, you are agreeing to our use of cookies as defined in our cookie policy.

Accept Cookie Policy

Cookie and Privacy Settings



How we use cookies

We may request cookies to be set on your device. We use cookies to let us know when you visit our websites, how you interact with us, to enrich your user experience, and to customize your relationship with our website.

Click on the different category headings to find out more. You can also change some of your preferences. Note that blocking some types of cookies may impact your experience on our websites and the services we are able to offer.

Essential Website Cookies

These cookies are strictly necessary to provide you with services available through our website and to use some of its features.

Because these cookies are strictly necessary to deliver the website, refusing them will have impact how our site functions. You always can block or delete cookies by changing your browser settings and force blocking all cookies on this website. But this will always prompt you to accept/refuse cookies when revisiting our site.

We fully respect if you want to refuse cookies but to avoid asking you again and again kindly allow us to store a cookie for that. You are free to opt out any time or opt in for other cookies to get a better experience. If you refuse cookies we will remove all set cookies in our domain.

We provide you with a list of stored cookies on your computer in our domain so you can check what we stored. Due to security reasons we are not able to show or modify cookies from other domains. You can check these in your browser security settings.

Google Analytics Cookies

These cookies collect information that is used either in aggregate form to help us understand how our website is being used or how effective our marketing campaigns are, or to help us customize our website and application for you in order to enhance your experience.

If you do not want that we track your visit to our site you can disable tracking in your browser here:

Other external services

We also use different external services like Google Webfonts, Google Maps, and external Video providers. Since these providers may collect personal data like your IP address we allow you to block them here. Please be aware that this might heavily reduce the functionality and appearance of our site. Changes will take effect once you reload the page.

Google Webfont Settings:

Google Map Settings:

Google reCaptcha Settings:

Vimeo and Youtube video embeds:

Other cookies

The following cookies are also needed - You can choose if you want to allow them:

Privacy Policy

You can read about our cookies and privacy settings in detail on our Privacy Policy Page.

Privacy Policy
Accept settingsHide notification only