References: the good, the bad and the ugly
The giving of references can often cause employers a headache; how much to say, how little, how personal?
There is no legal obligation to give a reference, however if you choose to give a reference, take care to ensure that it is true, accurate and fair. And don’t forget to comply with the provisions of the Data Protection Act.
Failure to do this could leave you exposed to a legal challenge for negligent misstatement, as was the situation in the recent case of Jackson v Liverpool City Council.
Mr Jackson left Liverpool City Council and, after some time, secured a post with Sefton Borough Council. Part of a reference provided by Liverpool referred to issues regarding record keeping, which had come to the referee’s attention after Mr Jackson’s departure. The reference said that these concerns had been addressed by supervision and would have led to a formal improvement plan, but that Mr Jackson had left before this process was instigated.
The Court of Appeal decided that Liverpool City Council were not negligent in providing this reference. The Court said that because it had been made clear that the upshot of the concerns raised would have been a formal improvement plan, rather than more serious disciplinary action, and also made it clear that Mr Jackson left before any process was instigated, the reference was fair. The Court also drew on the fact that the reference had identified some of Mr Jackson’s strengths.
Caution should be exercised if you are considering referring to potential concerns about a former employee in a reference. The facts in Jackson were fairly specific, and it is easy to foresee another Court coming to a different conclusion based on different circumstances.
It is important to ensure that you have a clear policy in place with regard to references, and that they are given centrally by one person or department. When considering what information to provide in a reference, you could choose to give only brief factual details of the start and finish dates of employment and the role(s) performed. If you choose to give more detail, you should think about accompanying this with a disclaimer, although any disclaimer will only be effective insofar as it is reasonable, so the importance of the reference being true, accurate and fair remains paramount.
Published: 1 Dec 2011