Morgan Russell Solicitors

Giving References

Three cases in 1999/2000 extended the duty of employers to employees on giving references beyond the 1994 principle, being a not too onerous burden “to take reasonable care” when giving a reference on an employee. In Spring –v- Guardian Royal Exchange [1994] ICR 596 it was felt that if a reference was true, accurate and fair and did not give a misleading impression it did not have to go into any great detail. After this turn of the century case law, what are your obligations now and what might your policy be?

Is there an obligation to give a reference?

There is no general legal obligation on an employer to provide a reference unless:-

  1. You have specifically agreed to do so, for example, in a Compromise Agreement; or
  2. Possibly, if it is normal practice to do so for any particular “class” of employees; or
  3. Where to fail to do so would amount to victimisation (see below).

Dismissed employees are legally entitled to receive written reasons for their dismissal but this is not the same as a reference.

Some regulatory bodies require a reference to be given. This includes financial services industries regulated by LAUTRO and the Personal Investment Authority, PIA.

As a refusal to give a reference can lead to prospective employers assuming the employee left under a cloud, it has often been usual practice to give references. However,  many employers now choose not to. Whatever policy you choose to adopt, make sure it is consistent!

The need for consistency

In Khan –v- Chief Constable of West Yorkshire Police [The Times 15th March 2000] Mr Khan had brought a race discrimination claim against the Chief Constable. He believed that his rejection for promotion to Inspector had been on racial grounds. While the case was pending he applied for a position as Inspector with another Force. He requested a reference from the Chief Constable of West Yorkshire, who refused on the grounds that it might prejudice the outstanding Tribunal proceedings. Mr Khan added to his claim a complaint of victimisation. The Court of Appeal decided that the race discrimination claim was the only reason Mr Khan had not been provided with a reference and, therefore, he had been victimised. 

Moral- If you generally provide a reference then you must not withhold one for retaliatory reasons.

Obligation to give an overall reference that is fair and reasonable

TSB Bank Plc –v- Harris [2000] IRLR 157 extends the duty owed to current employees to give not only a true and accurate reference but also an overall fair and reasonable reference.

Mrs Harris had been given a final written warning for forgery (she had corrected an entry on a form and initialled it herself with the customer’s initials). She applied for another job and sought a reference from the TSB. The reference provided factual statements only, including a statement that seventeen complaints had been made against her, of which four had been upheld, with eight outstanding. Because of that reference Mrs Harris did not get the job. She claimed constructive dismissal. The Appeals Tribunal held that an employer who had undertaken to provide a reference must ensure that the reference is “fair and reasonable”. It was not enough that the TSB had accurately recorded her work record.  Mrs Harris had only ever been aware of two complaints. The EAT held that for the reference to have been fair and reasonable Mrs Harris must have had the opportunity to have answered the complaints.

And there are now obligations to former employees as well

In Coote –v- Granada Hospitality Limited (2) [1999] IRLR 452 Mrs. Coote had been dismissed by Granada in 1993. She alleged that this was due to her pregnancy and brought a sex discrimination claim, which was settled. Mrs Coote subsequently looked for another job. She applied to Granada for a reference. Granada refused to provide one. She brought a claim for victimisation as she believed that the refusal was as a result of her previous claim. The European Court of Justice ruled that if the refusal to give a reference for an employee was in retaliation for a previous sex discrimination claim brought by that employee, it did not matter that he or she was no longer an employee, the refusal was a breach of the Equal Treatment Directive and damages were payable. 

In Rhys-Harper v Relaxion Group Plc [2003] IRLR 484 the House of Lords held that protection against discrimination (whether on grounds of sex, race or disability) does not cease when the employment ends. Discrimination legislation regarding discrimination in relation to sex, race, disability, religion or belief and sexual orientation provides that it is unlawful for an employer to discriminate against a former employee by subjecting them to a detriment or to harassment where this is closely connected with a relationship between the complainant and the respondent which has come to an end.

Moral – Do not withhold a reference as a form of retaliation against a former employee.

Checklist on giving  and content of references

(1)        First and foremost, have a consistent policy and apply it; if an employer  generally provides reference he must think very carefully before withholding one for retaliatory reasons!

(2)        Have one or two nominated individuals to give references as a matter of policy.

(3)        The individuals should have access to files containing necessary factual information.       

(4)        Any individual with animosity towards the person seeking the reference should not prepare a reference as it is likely to be biased.

(5)        Provide factual information.

(6)        Use neutral rather than positive or negative language.

(7)        Provide information that is requested and nothing more (subject to point 17 below).

(8)        Astute prospective employers will follow up a written reference with a telephone call.

(9)        Do not give subjective opinions. Give facts only.

(10)     Always check the facts.

(11)      If you do give opinions, ensure that the facts are sufficient to support those opinions.

(12)      Criminal convictions - You can ask about an applicant’s criminal record and you can reveal any criminal convictions in a reference except spent convictions. Spent convictions should not be revealed, except for protected occupations, such as accountants, doctors, lawyers, teachers, and work involving children.

(13)      Whether you give a verbal or written reference, you can be liable for subsequent claims – the prospective employer may make notes of telephone conversations. Do not make the mistake of saying things verbally which you would not be happy putting in writing.

(14)      With a written reference mark it “Private and Confidential”.

(15)      With an oral reference, consider calling the individual back before giving the reference and make a note of what you are going to say.

(16)      If you are prepared to give a reference and you propose referring to complaints about the employee make sure he or she has had the opportunity to explain those complaints first.

(17)      Do not be unfairly selective with your information, e.g., stating that the employee is always late without pointing out that he/she worked late to make up the time.

(18)      By inserting a disclaimer such as “Without prejudice” or “Without legal responsibility” you can exclude responsibility for inaccuracies but only if a Court decides that it was reasonable to exclude that liability (i.e. to a new employer).

(19)      You could agree to give a reference conditional on the employee accepting it on a ‘no liability’ basis but that approach is open to challenge under the Unfair Contract Terms Act 1977.

Liability 

(i)         If the reference is not fair and accurate, you can be liable to the employee for damages on the grounds of negligent mis-statement.

(ii)        If you knowingly give an inaccurate reference which is derogatory or contains false information and is designed to prevent the employee getting the job, the employee can sue you for defamation, malicious falsehood or for victimisation under the appropriate legislation.

(iii)       If you refuse to give a reference contrary to general policy for retaliatory reasons, the employee may bring a complaint for victimisation under the appropriate legislation.

(iv)       If a reference is not fair and reasonable (when taken as a whole) for an employee seeking work elsewhere, he/she may have a claim for constructive unfair dismissal.

(v)        The new employer can sue you for losses caused by inaccuracy where it would have been reasonable for you to expect the recipient to rely on and act upon the statement, e.g., stating that an employee is honest when he/she is not and he/she subsequently steals from the employer. 

Further Information 

If you have any questions regarding the above or require additional information or assistance, please contact Melanie Smith on +44 (0)1372 461411.

The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.
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