Employers should be aware of the dangers when giving a negative reference

A recent case reminds employers of the need to be careful in both giving of references and agreeing references as part of settlement agreements.

In Pnaiser v NHS England and Coventry City Council, the Employment Appeal Tribunal considered whether the giving of a verbal reference which implied that the claimant had a poor sickness record, and the subsequent withdrawal of an offer of employment, amounted to discrimination on the grounds of the employee’s disability. In this case the employer Coventry City Council had made the employee redundant and an agreed reference had been negotiated as part of a settlement agreement.

Whilst this case is on quite specific facts it does highlight the difficulties an employer can face in dealing with reference requests where employees may have left in less than ideal circumstances. Theresa Mimnagh of Lawspeed said “It is perhaps this fear getting things wrong that is the reason why some employers now have a standard references template or confirm nothing more than the employee’s dates of employment and role”.

Employees will often expect or ask for a reference where there is a settlement agreement and employers may be tempted to say something positive to facilitate settlement. However, care must be taken to ensure that the information given in a reference is not inaccurate or misleading so as to be a misrepresentation. Equally, negative information in a reference should be carefully considered in order to ensure that it would not be discriminatory as the same information is likely to be relied upon by a future employer.

If you are concerned about what to state in a reference, or need assistance with settlement agreements or arrangements please contact Lawspeed on 01273 236 236.

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