As a general rule an employer is not under a duty to provide a reference for an employee or ex-employee. However, where a reference is provided the employer is under a duty of care to ensure that it is true, accurate and fair. A breach of this duty can lead to a negligence claim for economic loss caused to the employee as a result.
After 12 years with his employer the claimant in a recent case against a City Council left to take up another post. Although two satisfactory references were provided from previous employers, one reference provided by the ex-employer in this case was challenged. The reference contained positive statements about the ex-employee but it also left some questions unanswered and mentioned concerns about recordkeeping. The author said she could not elaborate on these concerns because they had not been investigated and she pointed out that they would have led to a formal improvement plan if the ex-employee had remained with the Council (rather than disciplinary action).
An earlier offer of employment was withdrawn in light of the reference and the ex-employee was unemployed for a year.
A County Court had found that the reference was true and accurate but held it to be unfair because it carried with it an ‘unanswered, uninvestigated, unparticularised, unspecific allegation …. which the ex-employee had no opportunity to refute or answer ..’
On appeal, the Court of Appeal had some sympathy for the ex-employee but took the view that the reference could not be said to be unfair. It said that accuracy and truth go to the facts which form the basis of the reference and that fairness goes to the overall balance of the reference and any opinion contained within it.
Employers should exercise caution when issuing references and take legal advice if unsure whether a reference will be deemed fair.
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