References - accuracy and fairness

Date Added: 14 October 2011

An employer is not under an obligation to provide its employees with a reference, unless there was a contractual term in their employment contract to that effect. If a reference is provided the employer owes a duty of care to not give misleading information about that employee. The employer may be sued for damages in negligence if that duty is breached. Although no rules exist as to what can and cannot be said, an employer should be careful not to include facts or opinions that cause the prospective employer to draw adverse inferences.

Developments in case law

As a result of case law on the matter, the reference needs to be true, accurate and fair. Fairness, means that is should not be misleading overall. The first case to address this was Spring v Guardian Assurance [1994], the employer had not exercised reasonable care when it included ‘facts’ in the reference which were merely allegations and had not carried out a proper investigation. The House of Lords held that an employer should exercise reasonable care and skill in ensuring the correctness of facts which are included in a reference, which may cause adverse opinions to be formed.

In Bartholomew v London Borough of Hackney [1999], the matter was developed further. The Court of Appeal held that the employer was not in breach of is duty of care by mentioning in the reference, details of disciplinary proceedings which had not been concluded when the employment ended. It was reiterated that the duty was to provide a reference that was not only true and accurate, but also fair in that it did not give a misleading impression overall. Had the employer, in this case not referred to the disciplinary proceedings, it would have failed in its duty to the future employer to provide a reference that was not misleading or unfair.

Jackson v Liverpool City Council [2011]

The case of Jackson was heard on 15^th June 2011 and further developed the position relating to the giving of references. Mr Jackson brought a claim against his old employer Liverpool City Council for damages in relation to a reference they provided to his new employers. Liverpool City Council were asked a number of specific questions. Two of which: would Liverpool City Council re-employ him and was there any reason why the new employers should not employ him, were not answered. A third question asked about Mr Jackson’s weaknesses. Their response to this question intimated that his manager had identified some issues in respect of record keeping. Liverpool City Council suggested they would have addressed this matter by instigating a formal improvement plan between employer and employee. However as he left the Council before such a process could be implemented there had been no need to investigate it further. There was also communication between the employers by telephone, whereby it was made clear that the matter had not been investigated, hence why two of the questions remained unanswered. As a result Mr Jackson was not offered the job and remained unemployed for a year.

Initially the High Court held that the reference was true and accurate, but not fair. It found it unfair to refer to the allegations without properly investigating them or giving Mr Jackson a chance to refute them. Liverpool City Council appealed to the Court of Appeal against the decision.

The Court of Appeal allowed the appeal holding that Liverpool City Council could not be criticised for providing a reference which referred to allegations but had made it clear that those allegations had not undergone any investigation. The reference was both true and accurate and the court could not see how Liverpool City Council could have honestly answered the questions put to them without referring to the allegations.

The current position

What is clear from the Court of Appeal’s judgment in Jackson is that accuracy and truth relate to the facts which form the basis of the reference, while fairness goes to the overall balance of the reference and any opinion therein.

Where employees leave in circumstances that leave questions over their performance or conduct, employers should convey these issues to the new employer but make it abundantly clear that no investigation has been carried out and that no assumptions can be made. The other alternative, which Liverpool City Council could have considered was to refuse to give a reference.

The outcome of this case is uncomfortable for employees. They are unlikely to be given the chance by their prospective employers to respond to un-investigated allegations.

If you are an employer or employee and require further information or advice about what the latest developments in case law on the giving of references means for you, please contact Martin Stevens on mds@hallettandco.co.uk, Darren Thorneycroft on dct@hallettandco.co.uk, Marcus Self on ms@hallettandco.co.uk or telephone 01233 625 711.

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