When providing a reference for an ex-employee it is important to approach with an element of caution. Getting it wrong could lead to claims of discrimination, breach of contract, defamation, malicious falsehood or negligent mis-statement. Over the years case law has helped to highlight some key points to take into account when providing a reference.
It is important to note that there is no obligation placed on an employer to provide a reference. Nevertheless, in the case of Kidd v Axa Equity & Law Life Assurance Society , it was made clear that if an employer does decide to provide a reference, he/she must take reasonable care to ensure that it is not misleading. Within this particular case, Mr Kidd decided to switch over to a different insurance company, Allied Dunbar. Equity & Law provided a reference which noted that there had been some complaints about Mr Kidd from various clients. As a result, Allied Dunbar decided not to engage Mr Kidd. Mr Kidd claimed damages against Equity & Law on the basis that they owed him a duty of care.
Mr Kidd lost his case and the Judge held that there was no duty on Equity & Law, “to give a full and comprehensive reference or to include in a reference to all material facts”. However, it was concluded that the duty that was placed on Equity & Law was a duty to, “take reasonable care not to give misleading information about Mr Kidd, whether as a result of the unfairly selected provision of information, or by the inclusion of facts or opinions in such a manner as to give rise to a false or mistaken inference in the mind of a reasonable recipient”.
Furthermore, in the case of Spring , an employer was found to be “careless of the true facts of the case”, when a reference was provided that doubted the honesty and integrity of an ex-employee.
All the main principles can be drawn together in the recent case of Jackson v Liverpool City Council . Within this case it was found that if an ex-employer provides a reference, “he is under a duty to ensure that it is true, accurate, and fair. Fairness relates to nuances that could be drawn from what is said rather than any notion of the ex-employee having a mechanism to challenge the reference. It will very much depend on the circumstances of an individual case”.
The most important point to remember when writing a reference is that any issues or problems contained must be explained and backed up with relevant evidence. Additionally, when a reference is given that contains negative implications, it is important to state whether these concerns have been investigated or not.
Author: Lauren Blythe
Adrian, a highly experienced lawyer, founded Lawspeed in 1997. He is responsible for developing our extensive portfolio of products and services, including the widely used Lawspeed contract templates. Adrian is an expert on “recruitment law” and specialises in contracts, regulatory compliance, employment status and dispute handling. He is chair of the trade body the Association of Recruitment Consultancies, the only lawyer lead recruitment trade body in the UK. Adrian and his co-director Ravi devised Standards in Recruitment as a vehicle for helping drive up standards and compliance in the industry.
Adrian is our lead in discussions with the government over regulatory evolution. Apart from assisting with client support, Adrian’s primary role is research and development into methods of business delivery, our latest service Proterms being his most recent project. Adrian heads our IR35 lawyers team.