Commonly asked questions on the legal issues relating to references
Here we list a selection of key cases, reported since 2010, on the issue of writing references, providing a summary of the decision and implications for employers.
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Pnaiser v NHS England and Coventry City Council 2 November 2015
(unreported, UKEAT/0137/15 3 November 2015, EAT)
A disabled employee with the City Council was unavoidably absent from work for several months by reason of her disability which necessitated various operations and monthly injections. She was eventually made redundant and signed a settlement agreement which included an agreed reference.
The claimant later was offered job with NHS England subject to the receipt of satisfactory references. When the manager of NHS England requested a reference on their standard template, the Council provided the reference which had been agreed under the settlement agreement. As the reference was not on the standard template the recruiting manager of NHS England telephoned the Council for clarification.
The Council then gave a negative verbal reference which implied that the claimant's sickness absences had adversely affected her performance and that she might struggle to cope with pressure. NHS England therefore withdrew the job offer from the claimant.
The Employment Appeal Tribunal held that both the Council's negative reference and the NHS England withdrawal of the job offer were discrimination on the grounds of disability.
Implications for employers
- Employers who decide to give references must ensure that the wording is not inaccurate, misleading or discriminatory.
- There is no obligation to provide references at all and many employers have therefore adopted a practice of providing a reference with the bare minimum information about dates and job title only.
- If a reference is agreed as part of the settlement agreement, the former employer should adhere to this (or should not have agreed it in the first place).
- Employers should be careful before rejecting a job applicant, or withdrawing an offer of employment once they know about a prospective employee's extensive absences. Long term absence is a good indicator of a disability and employers may be deemed to be aware of a candidate’s disability once the absences have been revealed.
Jackson v Liverpool City Council | Court of Appeal | 15 Jun 2011
(unreported,  EWCA Civ 1068 15 June 2011, CA)
Issue: Complaints made about an employee
A social worker employed by Liverpool City Council left with some concerns about his work remaining un-investigated. A year after he had left, the Council were asked for a reference by another council (Sefton Borough Council ).
Liverpool CC answered a question about the employee’s weaknesses by saying that there were some issues in respect of recording and record keeping which would have led on to a formal improvement plan to assist the employee to make improvements in this area. A Liverpool CC representative also said on the telephone that the concerns had not been investigated. The social worker did not get the job with Sefton and remained unemployed for about a year. He sued Liverpool CC for damages for breach of its duty of care in relation to the reference.The employee lost in the Court of Appeal (CA), as the CA accepted that the reference was truthful and accurately represented the relevant facts. There were disciplinary issues which were unresolved at the point when the employee left. The reference made it clear that the employee had left before Liverpool CC could investigate the allegations. In addition, the reference confirmed that, if the allegations had been investigated and upheld, they would have resulted in a performance improvement plan and not disciplinary action.
Implications for employers
- There is no statutory obligation on an employer to provide a reference at all.
- Many employers choose just to give a bare reference to all employees.
- Employers owe a duty of care to all ex-employees concerning references and they owe a similar duty to prospective employers as well.
- Employers will be negligent and breach their duty of care if references are false, inaccurate or give a misleading impression.
- This case provides guidance for employers on the information that they can include without risking liability for negligence.
- If an employee leaves with issues surrounding their performance or conduct, or these issues arise after they have left, employers should disclose the issues accurately to any perspective new employer.
- If there are outstanding allegations against an employee that have not been investigated, then employer must be careful to make it absolutely clear that the allegations have not been investigated and that no assumptions can be made.
- Employers should have clear internal procedures for giving references in respect of ex-employees.
McKie v Swindon College | High Court | 15 April 2011
(unreported,  EWHC 469 11 February 2011, HC)
Issue: Previous employer sent damaging and untrue information
An employee of a college left after eight years and received an excellent reference. Later he got a new post with a university. This role meant he had to liaise with his previous employer. Early on in his employment with the university, a new HR Manager of his previous employer sent an email to the university which was damaging and untrue. As a result the employee lost his job at the university. The High Court held that although this was not a normal employer reference as such, a duty of care still did apply and the employee won his claim for damages in the tort of negligence.
Implications for employers
- It is well established law following the leading decision Spring v Guardian Assurance  2 AC 296 that an employee can claim damages following a reference negligently prepared by an employer.
- However this case goes one step further and says that a duty of care also applies to cases involving other statements made by former employers which are not references. A duty of care applied will arise if:
- it is fair, just and reasonable to impose a duty of care
- there is a causal connection between the negligent comments and the damage suffered (that is the loss of the new job).
- Employers need to ensure that unjustified comments or criticisms about ex- employees are not made at all unless they can be justified.
- Employers are of course under no legal obligation to provide a reference for an ex-employee or any other comments.
- Employers appear to owe a duty both to the ex-employee and recipient of the reference to provide references and any other subsequent comments that are true, accurate and fair.
- Many employers may choose to give only brief factual details stating the relevant dates relating to the ex-employee’s employment with the company and the roles that they carried out with no further details. Such employers should state in the reference that it is company policy to only provide a reference in this limited format, in order to avoid being construed as providing a negative reference.
- Employers should maintain a consistent approach regarding references and other comments or they could be faced with claims for discrimination.
- Employers may wish to amend their company handbooks to include guidance not only on references, but on all communications regarding all former employees in order to avoid the risk of liability.
- Employer should have a clear policy regarding the provision of references, making clear who can provide references and/or any other follow-up comments.
- Employers must always take care that they comply with the Data Protection Act 1998 as the reference and subsequent comments may contain personal data.
- Some employers use disclaimers stating that no responsibility to the recipient of the reference is accepted on behalf of the company for any errors, omissions or inaccuracies in the information or for any loss or damage suffered as a result of the recipient relying upon it. However this disclaimer adds little value as the disclaimer has to be reasonable for it to be effective and cannot be used to protect employers against inaccurate information.
Please note: While every care has been taken in compiling these notes, CIPD cannot be held responsible for any errors or omissions. These notes are not intended to be a substitute for specific legal advice.
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