Ever agonised about just how far you should go when responding to a reference request?  Full disclosure and get it off your chest or go for the quiet life and issue yet another bland and useless statement of employment dates and job title?

Employers providing a reference owe a duty of care both to the ex-employee and the prospective employer. English case law dictates that the “overall impression” given by a reference must not be misleadingly either positive or negative. Employers must then tread the very thin line between those two equal but opposite duties.  

The recent case of Jackson v Liverpool City Council Jackson v Liverpool City Council [2011] EWCA Civ 1068 | British Case Law highlights their problem here. Jackson left Liverpool City Council to work for Sefton Borough Council in 2007. One of his references from Liverpool, while containing some positive comment, also suggested that there had been “record-keeping issues” which, if Jackson had stayed, “would have led on to a formal improvement plan to assist him to improve”.  At the same time, however, Liverpool confirmed to Sefton expressly that it had not actually been able to investigate these issues before Jackson left. Needless to say, he did not get the new job within Sefton and remained unemployed for around 12 months.

Upholding his claim against Liverpool for negligent mis-statement, the High Court The High Court found that the reference was unfair to Jackson because that it carried an “unanswered, uninvestigated, unparticularised, unspecified allegation implying he was unsatisfactory for employment” without his having any opportunity to refute or answer it, and in fact that this absence of a right to be heard rendered the reference unfair even if it was all true.

The Court of Appeal Court of Appeal civil division disagreed. It drew a distinction between fairness in the overall balance or impression of the reference and fairness in the form of a procedure that would allow the ex-employee to challenge an adverse opinion before it went live in a reference. The second sort of fairness is not actionable, it thought. It was all about the overall impression given by the testimonial, not the process by which the employer got there. Here Liverpool had adequately qualified its cautionary remark about Jackson’s record-keeping issues by making it very clear that the allegations had not been investigated.

We disagree – on the no-smoke-without-fire principle, merely mentioning the allegation in the reference will leave a mark on the reader even if it is stated at the same time that it is unproven, untested or denied by the employee. Employers would surely rarely feel themselves moved to raise the point at all unless pretty sure there was something in it. And Liverpool’s words here -- would, not could, have led to a formal plan to help him improve -- all strongly imply a determination of substandard performance already made.

This case did not deal with the possible Data Protection Act Data Protection Act 1998 repercussions of using personal data in this unfair way. This may represent a separate right of recourse for Jackson (for whose position the Appeal Judges expressed considerable personal sympathy). Even though Liverpool succeeded on the facts, it was fortunate to do so. Much safer for both reasons to limit your references to matters which you can prove or which, as a minimum, you have raised with the ex-employee for his comments before committing pen to paper to his next employer. Failing that, back to the bland-o-gram!