If an employer agrees to provide a reference, it has long been established that the reference must be ‘fair, truthful and accurate’. The reference does not need to be full and comprehensive (hence the preference of many employers to provide brief, factual only references) but it should include everything necessary to avoid being misleading.
The duty to be fair, truthful and accurate is owed to the recipient of the reference, as well as to the worker about whom the reference was written. An employer providing an unfair, untruthful or inaccurate reference can therefore face potential claims from both the worker and the worker’s prospective employer (hence, once again, the preference of many employers to provide factual only references).
Despite the potential pitfalls, some employers chose to provide, and some regulated employers are required to provide, fuller and more extensive references. This can lead to issues particularly where the worker has been subject to some form of investigation or disciplinary proceedings, which may or may not have been completed where the worker resigns before being potentially dismissed.
The extent to which a reference writer should question the adequacy and fairness of previous investigations upon which facts and opinions in the reference had been based has been considered by the High Court in Hincks v Sense Network Ltd  EWHC 533 (QB).
The Court found that the standard of care to be exercised by a reasonable reference writer should be expressed in broad terms. It would not be appropriate, the Court said, to prescribe the specific level of care required in every case, as in each case the nature of the duty will depend on the surrounding facts.
The Court went on, however, to identify certain common features of the duty. They are:
- to conduct an objective and rigorous appraisal of facts and opinion, particularly negative opinion, whether those facts and opinions emerge from earlier investigations or otherwise;
- to take reasonable care to be satisfied that the facts set out in the reference are accurate and true and that, where an opinion is expressed, there is a proper and legitimate basis for the opinion;
- where an opinion is derived from an earlier investigation, to take reasonable care in considering and reviewing the underlying material so that the reference writer is able to understand the basis for the opinion and be satisfied that there is a proper and legitimate basis for the opinion; and
- to take reasonable care to ensure that the reference is fair, in the Bartholomew sense, of not being misleading either by reason of what is not included or by implication, nuance or innuendo.
This formulation is to be welcomed and will be helpful to employers who, for whatever reason, provide fuller references for their workers and need or wish to express an opinion about the employee.
That said, most employers would be well advised to stick, if at all possible, to providing a de minimus factual only refence as being the most effective way of limiting exposure to claims and financial liability for negligent misstatements or malicious falsehoods.