References – more trouble than they are worth?

 

 

The issue of employee references has become increasingly difficult in recent years, with employers having to balance the need to be honest and truthful against the risk that the contents of a reference could be held to breach their duty of care to their employee or ex-employee.

 

One solution is not to provide references at all, but this is unhelpful to both prospective employers and to the employee, as inferences may be drawn from the refusal to provide a reference.

 

A recent case, Jackson v Liverpool City Council, at least provides some encouragement that honesty remains the best policy for those providing references

 

Mr. Jackson worked for Liverpool City Council as a social worker, until leaving in 2007. Sometime later he applied for a similar position with another local authority, which sought a reference for him from Liverpool City Council.

 

In providing a reference, the Council outlined Mr. Jackson’s  strengths,  but also referred to 'issues' regarding his record-keeping, noting that  it was likely that these would have led to a formal improvement plan, if he had not left before they could be properly investigated.

 

In a phone call to clarify these concerns, a manager at the Council told the prospective employer that because these issues had been raised but not formally investigated, she could not give a positive or negative answer to the question 'would you employ the employee again?'

 

 Mr. Jackson did not obtain the new position. He then brought proceedings in the county court seeking damages in respect of the Council's reference. A judge upheld his claim, ruling that, although the Council's comments were truthful and accurate, they were not fair, in that they amounted to an 'unanswered, uninvestigated, unparticularised, unspecified' implication that he was unsuitable for employment.  In the circumstances, the Council could have either investigated the allegations or refused to provide a reference at all.

 

The Council appealed to the Court of Appeal (CA). The CA overturned the county court’s decision, by referring to the House of Lords judgment in Spring v Guardian Assurance plc and ors. This judgment indicated that that, in giving a reference on behalf of an ex-employee, the employer owes him or her a duty of care. In particular, reasonable care must be taken to ensure the factual accuracy of anything said that may cause a prospective employer to draw an adverse opinion or in respect of anything adverse said by the reference provider.

 

The Court of Appeal held that, in applying these principles, it was possible to distinguish between accuracy and truth on the one hand and fairness on the other. Accuracy and truth related to the facts which formed the basis of the reference. But fairness went to the overall balance of the reference and any opinion contained within it.

 

On this basis, the CA did not see how the Council could honestly have answered the questions posed by the reference without identifying the fact that concerns over Mr. Jackson’s record keeping had been raised.  However, it had taken care to make clear to the prospective employer that these had not been investigated, and were not therefore substantiated.

 

The CA decided that, taken together, the reference and the subsequent telephone conversation were careful and fair. The Court also held that the Council could not be criticisedfor providing a reference in the first place, as to refuse could have led the prospective employer to draw even more adverse inferences.

 

This case is helpful in that it implies that careful and complete statement of the facts in a reference is, of itself, unlikely to lead the reference provider into difficulty.