A helpful Court of Appeal decision has clarified the position for employers when giving references where allegations about an ex-employee’s capability or conduct come to light after they have left. In this case, the former employer was not negligent when it provided a reference which referred to allegations against a former employee but made it clear that these allegations had not been investigated.
This is a useful and reassuring case for employers as it provides some clear guidance on the provision of references. Employers are generally under no duty to provide a reference (apart from specific cases, e.g. where there are regulatory requirements). If they do provide one, they owe a duty of care to the individual when preparing it and could be sued for damages in negligence if they breach that duty. As a result of this, it is important for a reference to be true, accurate and fair.
Mr Jackson had worked at Liverpool City Council as a social worker. He left to join Sefton Borough Council and received a satisfactory reference from Liverpool CC. After he left, concerns were raised about his work, but Liverpool CC decided that these concerns could not be investigated because he was no longer their employee. Mr Jackson applied for another job at Sefton BC a year later and they requested another reference from Liverpool CC, which contained a number of specific questions. Liverpool CC did not answer two of the questions, which were “would Liverpool CC re-employ him?” and “was there any reason why Sefton BC should not employ him?”.
In their answer to a question about Mr Jackson’s weaknesses, Liverpool CC said that “there were some issues identified by his team manager in respect of recording and record keeping. This was addressed by a supervision and would have led on to a formal improvement plan to assist Mr Jackson to make improvements in this area. Mr Jackson left the service before this process was instigated”. The issues referred to involved concerns that important work had not been completed by Mr Jackson and these concerns were based on reports by other colleagues. Liverpool CC also spoke to Sefton BC on the telephone, explaining their concerns but noting that these had not been investigated and so they were unable to answer certain questions in either a positive or negative manner.
As a result of the reference, Mr Jackson was unsuccessful. He remained out of work for approximately a year. He brought a claim for damages against Liverpool CC in relation to the reference on the grounds that Liverpool CC had breached its duty of care to provide a true, accurate and fair reference.
The Court of Appeal decided that Liverpool CC could not be criticised for providing a reference which referred to the allegations, as it had made it clear that the allegations had not been investigated. A key factor was that the reference had made it clear that Mr Jackson had left before Liverpool CC could investigate and that, if the allegations had been upheld, the result would have been a performance improvement plan rather than formal disciplinary action against Mr Jackson. The reference was true and accurate. The Court of Appeal said that they could not see how Liverpool CC could have answered the questions honestly without referring to the concerns. It was also helpful to Liverpool CC that they had stressed on the telephone that they could not answer the questions in either a positive or negative way.
Mr Jackson had argued that Liverpool CC could have refused to give a reference. However, the Court of Appeal disagreed with this and said that not providing a reference could have put him in an even worse position, as it would have left Sefton BC with no information and would have led it to draw adverse inferences. An alternative argument run by Mr Jackson was that Liverpool CC could have investigated the allegations before responding. The court said that this would have been administratively and practically difficult and therefore disproportionate. It also would have been open to Sefton BC, having knowledge of the issue, to speak to Mr Jackson about the issue and satisfy itself.
Impact and recommendations
If an employee leaves at a time where an investigation is ongoing but has not been concluded, or where issues arise after an employee leaves and have not been investigated, employers can disclose this but should do so in a measured and fair way. This will be particularly important if to omit this information would mean providing a misleading reference. If the information is disclosed, employers need to be careful to make it clear that the issues have not been investigated and therefore no assumptions should be made about what the outcome of the investigation might have been.
Our advice when providing any reference is to make sure that:
- References are provided in accordance with any company policy on references;
- If only brief factual details are provided, it is explained that it is company policy to provide a reference in this format;
- The reference contains only accurate statements and provides a balanced overview of the employee and the overall picture the reference gives is not misleading and fairly represents the individual;
- Any comments on the individual’s suitability for a new job are given carefully;
- The reference is consistent with the reason for the dismissal;
- If there are unresolved allegations or investigations, it is stated clearly that these are unresolved and that no comment (either positive or negative) should be read into that;
- Any disclaimer given is reasonable; and
- It is marked “Private and confidential for the addressee only”.