When giving a reference, an employer has a duty of care to an ex-employee to ensure that the information provided is true, accurate and fair.
In Jackson v Liverpool City Council, the Court of Appeal has given useful guidance on how to deal with the situation when concerns regarding an employee’s work come to light after he or she has left your employment.
In this case, Liverpool City Council provided a reference for an exemployee
but failed to answer certain questions because of concerns regarding his work, which had arisen after he left their employment and had
not been investigated.
The Council did make it clear, however, that the concerns would have warranted a formal improvement plan rather than more serious disciplinary action had the man remained an employee and that it was not in a position to answer the questions in ‘either a positive or negative manner’.
The ex-employee failed to get the job he was seeking and brought a claim for damages in relation to the reference provided by the Council.
The Court of Appeal had some sympathy for the ex-employee but took
the view that the reference could not be said to be unfair. In the Court’s view, Liverpool City Council could not be criticised for providing a reference and, in the circumstances, could not be reasonably criticised for including within it a cautionary remark.
The Council had made it clear that it could not answer the questions in either a positive or negative manner. It was then a matter for the prospective employer to raise the issues with the candidate himself.
Had the Council failed to provide a reference, it was likely that more serious
adverse inferences would have been drawn as a consequence.
The Court held that accuracy and truth go to the facts which form the basis of the reference and fairness goes to the overall balance of the reference and any opinion contained within it.
This does not mean that there has to be some sort of fair procedure for the ex-employee to challenge an adverse opinion but is related to the ‘nuances or innuendo’ that might be drawn from the assertion.
Employers should exercise caution when issuing references. We can advise you if you are asked for a reference and are in any doubt as to how to proceed.
Posted by Peter Nicholas on Tuesday, January 31, 2012 at 01:22 PM