With reference to references

VICTORIA YOUNG of Blocks Solicitors warns of some potential pitfalls for employers when compiling references for former or current employees

In Bullimore v Pothecary Witham Weld Solicitors , the EAT held a former employer who gave a reference liable for future loss of earnings of the employee, when a new employer withdrew a job offer on the basis of the reference.

In this case the reference amounted to victimisation, as it was negative because the ex-employee had raised a complaint about discrimination against the former employer.

References are often given fairly freely but care should be taken to ensure that they don’t amount to victimisation or detriment where complaints against the employer have been made by that employee. In such a case , whilst the employer may not be very happy with that employee, they need to ensure that this is not reflected in the reference.

Generally there is no obligation on employers to provide a reference; however, in some cases, a refusal to provide one could be discrimination. Additionally, those whose employment is regulated by the Financial Services Authority may be entitled to a reference.If a reference is given it must effectively meet certain standards:

n A reference should not be discriminatory. Particular care should be given to comments about performance, attendance or sickness absence where there is a risk that these may be discriminatory on grounds of disability, or if the absence relates to pregnancy.

n The reference should be true. Untrue statements that damage the reputation of a person may amount to libel. Try to ensure you can justify and support any comments made in a reference and show honest belief that the contents were true.

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An employer who provides a reference owes the employee a duty to take reasonable care in its preparation, including ensuring that the facts upon which any opinion expressed is based are accurate. Additionally they must not present facts so as to give a misleading impression overall.

If the reference is given whilst the employee is still employed then a failure to take proper care in a reference could be a breach of contract, and possibly give rise to a constructive dismissal claim.

As well as duties to the employee (or ex-employee) the referee owes a duty to the recipient when providing a reference to give an accurate and true reference, as if losses result from the recipient’s reliance on an inaccurate reference, the referee could be liable for those.

So take reasonable care to ensure the information in a reference is true, accurate and fair. Allegations of discrimination relating to references can often be countered by being consistent, having a policy on giving references and sticking to it.