In most situations you are under no duty to give a reference for your current or former staff. However, if you do give a reference then you have a duty to provide one that is true, accurate and fair. In this litigious world of ours this duty has resulted in employers being reluctant to give more than a very basic, factual reference. However, every now and then an employer goes a little bit further and triggers litigation from the disgruntled individual prompts the courts to give guidance as to what is and is not acceptable, just as the Court of Appeal did in the case of Jackson v Liverpool City Council.
Mark Jackson left his job as a social worker on the youth offending team with Liverpool City Council to move on to the greener pastures of Sefton Borough Council having received a satisfactory reference from Liverpool. However, following his departure from Liverpool CC, a number of complaints about his work surfaced, but, by now Jackson was a dim and distant memory for Liverpool and the complaints were not investigated.
A year later, Jackson left that role but then re-applied for a different job within Sefton Borough Council. A further reference was required of Liverpool and specific questions were asked. In an attempt to provide a true, accurate and fair reference and given the subsequent allegations against Jackson, Mrs Griffiths, a manager at Liverpool, declined to answer two questions: would Liverpool re-employ him and was there any reason why Sefton should not employ him. In answer to a question about his weaknesses Mrs Griffiths said "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 Mark to make improvements in this area. Mark left the service before the process was instigated."
In a subsequent telephone conversation with Sefton, Griffiths made it clear that any allegations had not been investigated and so she could not answer certain questions "in either a positive or negative manner". It is important to note that Griffiths balanced out the above allegations by also mentioning in her reference Jackson's various strengths. Following this reference Sefton did not offer Jackson the job and he remained unemployed for about a year. Jackson brought a claim against Liverpool for damages in relation to the reference.
The Court of Appeal held that the reference was true, accurate and fair. Griffiths made it clear that she could not answer the questions she left blank in a positive or negative way and that the allegations had not been investigated. Further, the reference made it clear that had the allegations been upheld, they would have resulted in a performance improvement plan rather than formal disciplinary action. It was suggested that Liverpool could have either refused to give a reference or investigated the allegations prior to giving the reference. However, the Court of Appeal noted that an investigation would have cost time and money and could have resulted in other causes of action and that refusing to give a reference could have led to Sefton drawing significantly worse adverse inferences.
All in all, Liverpool couldn't have given a true, accurate and fair reference without mentioning the allegations.
The decision is no doubt right and Mr Jackson is without a remedy even if, arguably, Liverpool City Council acted unreasonably in refusing his application for the role. However, whilst the case is a useful illustration of how an employer should conduct themselves when giving an honest and detailed reference, our advice is in the vain of typical advice to teenagers, i.e., now you know how to do it, please don't do it! Negative references almost inevitably prompt complaints and a factual reference is safer. If managers etc. are willing to provide a more personalised reference then ensure that they do it in their own capacity, i.e. not on company headed paper and make it clear that it is their view not the company's.