Employers are often wary of providing a reference, particularly if it might mean an ex-employee does not get the job. The Court of Appeal in Jackson v Liverpool City Council (2011) provides some reassurance that a balanced reference should not generally expose employers to legal liability.
Mr Jackson left the employment of Liverpool CC and one year later sought a reference for a new post with Sefton Borough Council. A difficulty arose because, after his departure from Liverpool, concerns had been raised about his performance. The allegations were neither investigated nor proved. However, the manager who provided the reference left some sections blank, and stated she was unable to answer the questions in a “positive or negative manner.” She also mentioned that there were “some issues” that had given rise to concern. Mr Jackson did not get the job.
The Court of Appeal recognised that Liverpool CC was in an awkward position. Any investigation into the allegations after Mr Jackson’s departure would have been fraught with difficulty. Alternatively, if they refused to provide any reference at all Sefton BC would probably have drawn adverse inferences and declined to employ him in any event.
The Court considered that the manager could not honestly have answered the questions in the reference without identifying the concerns. She had underlined that there had been no formal investigation. It was also highly material that she had explained to Sefton BC, on the phone, in a fair and non-judgmental way, why the reference was incomplete.
Including a cautionary remark based on allegations did not make the reference unfair where the employer had made clear that those allegations had not been tested. The central requirement is that the employer takes reasonable care to ensure the factual accuracy of the information which is communicated. Mr Jackson’s claim failed.