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Taking up references
Most employers do contact an applicant’s referees to obtain objective information on the applicant’s suitability for a role.
There is no legal duty to provide an existing or ex-employee with a reference. The risk for employers is that ex-employees who receive a bad reference may bring claims under the law governing malicious falsehood, negligence, and contracts, and a future employer can make a claim under negligence law.
However, adopting a policy of not supplying any references is not without risk and it is increasingly common practice to provide ‘bare minimum’ references.
Employers usually do provide references for some or all of the following reasons:
- It is established practice to do so.
- It may be discriminatory to refuse to give a reference.
- There may be an express or implied contractual term that the employer will provide a reference. An implied term will arise if it is normal practice in the type of work covered by the employee’s contract for a reference to be given, and it would be unreasonable to expect a new employer to take on the employee without a reference.
- A refusal would have adverse consequences on the employee concerned. Employers have “at least a moral obligation” to provide references (Spring v Guardian Assurance, 1994).
- A negligence claim could be made by a new employer if the previous employer failed to reveal something which ultimately causes the new employer a loss.
There is no detailed legislation specifically designed to deal with the general provision of references and, unusually for employment law, the principles relating to references are relatively settled. Significant changes, if any, will result from case law.
These Q&As should be read alongside our Case law on providing references.
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Before supplying a reference
An employer is not required by law to provide a reference unless its business is regulated by the Financial Conduct Authority. However, refusing to provide a reference, perhaps because there is an ongoing dispute with the employee concerned, may lead a prospective employer to draw adverse inferences about the employee which may lead to claims. To avoid this, the employer would need to adopt a blanket policy of not providing a reference for anyone.
- Consider policy on the provision of references and whether to use ‘bare minimum’ references (to avoid potential post-employment discrimination claims).
- Establish if there is an express or implied contractual obligation to provide a reference.
- Check whether there are any other consequences of refusing to provide a reference, including potential discrimination claims.
Other matters to consider before sending a reference include:
- Check all employee information (for example, dates of employment) is correct.
- Has disclosure of spent criminal convictions been avoided (see our guidance on Pre-employment checks)?
- Has a liability disclaimer been included to protect the employer?
- References should be addressed to a named person rather than 'to whom it may concern' and marked 'confidential' to the addressee.
- Verbal references should be avoided but, if given, notes should be kept of the conversation and no statements made that the employer would not be willing to make in writing.
If an employer decides to provide a reference, it should be written by the individual’s line manager, who should have all the relevant information and be trained in preparing references. Employers should ensure the reference is factually accurate and fair, and not misleading in the overall impression it gives to the recipient.
If supplying a reference as part of a compromise agreement settling a dispute with the employee, it may be prudent to agree the precise wording of the reference with the employee to avoid any future litigation.
Employers should remember that although references are given in confidence, the recipient may be required to disclose a reference under certain circumstances, such as a request for disclosure by an employment tribunal or under the Data Protection Act 2018.
Duty of care
An employer owes the employee the three main duties below concerning the provision of a reference.
An employer has a duty to provide a reference which is in substance true, accurate and fair. The employer will be liable under negligence law if the employee suffers loss as a result of the employer’s failure to exercise reasonable care in the preparation of a reference (Spring v Guardian Assurance, 1994).
The reference must not give an unfair or misleading impression overall, even if its discrete components are factually correct (Bartholomew v London Borough of Hackney, 1999).
An employer will not be liable if references are not comprehensive, unless the omission of the information has the effect of giving a misleading impression of the employee (Kidd v Axa Equity and Law Life Assurance Society, 2001).
A reference may not be negligent if it refers to matters which were untested and unproved at the point the employee left, as long as overall it is true and accurate (Jackson v Liverpool City Council, 2011).
Mutual trust and confidence
The implied contractual term of trust and confidence may be breached by providing a misleading reference. The Employment Appeal Tribunal has held that an employer’s compliance with its regulatory body’s minimum requirements on giving references is not an adequate excuse for failing to ensure that the reference is fair and reasonable overall, even if limited references of this type are normal in the industry.
In one case, a reference noted 17 complaints about the employee, but did not include an assessment of her general performance, character or ability. The employee was aware of only two of the complaints and had not had a chance to comment on them. This was held to have breached the claimant’s contract (TSB Bank v Harris).
Defamatory comments and malicious falsehood
There is no liability for defamation provided the employer believes the information in the reference is correct and is given without malice. However, the employer may be liable if untrue malicious comments are made.
Defamation is a complex area of law and employers could be threatened with proceedings under the Defamation Act 2013 by disgruntled ex-employees, when in fact there is a defence to the claim.
An employee bringing a defamation action must prove that the statement in the reference lowers the employee in the estimation of ‘right-thinking people’ generally and that the statement has caused, or is likely to cause, ‘serious harm’ to the employee’s reputation.
The employer may be able to rely on a number of defences under the Act, including:
- Truth in substance (section 2)
- Honest opinion (section 3)
- Publication on a matter of public interest (section 4).
In addition, ‘qualified privilege’ can protect employers’ statements in references. If the statement is made in good faith and there was a legal, social or moral duty to make the statement, then it is protected, even if it turns out to be false. This defence can be defeated if the employee shows that there was malicious intent behind the employer’s comments.
Any references given by an employer will normally be protected by qualified privilege, unless employees can prove that the employer deliberately or recklessly made a false allegation about them.
For example, in Thour v Royal Free Hampstead NHS Trust (2012), a laboratory assistant did not get a job with two London hospitals when his referee said he would not re-employ him because several members of staff made allegations about him of aggressive behaviour.
The High Court found the NHS Trust was protected from liability by the defence of qualified privilege. Employers have a moral, legal or social duty to provide honest and candid references to potential employers, and here there was no malicious intent in providing the bad reference. The claim for defamation failed.
However, employees in other similar cases may issue a claim for negligence, as well as defamation, and may have a greater chance with that claim if they can show that the employer’s reference breached the duty of care owed to them.
If an employer gives an inaccurate reference, it should make attempts to correct the error by sending an accurate reference and a covering letter as soon as possible.
Disclosing information relating solely to the number of days absent will not amount to the processing of sensitive personal data under the Data Protection Act 2018. However, more detailed information about workers’ physical or mental health may amount to the processing of special category (or sensitive) data, as defined in the Act.
Generally, workers have the basic right under the DPA and GDPR to be supplied, on request, with personal data held about them by an organisation. Any personal data held must be accurate and, where necessary, kept up to date. In many situations employees may make a written Subject Access Request (SAR) and employers must provide access to information about them in response.
However, there is an exemption in the DPA which means that an employer does not have to supply references relating to education, training or employment that were given in confidence for SARs. This means employers receiving SARs for disclosure of confidential employment references, whether created by that employer or received from a previous employer, can refuse to disclose them.
To be exempt from disclosure under a SAR, the reference must be given in confidence. Employers should therefore mark references as 'Strictly confidential – employment reference'. This will help in any dispute over whether the exemption applies.
Employers covered by the exemption do not have to provide access to the reference, but they can choose to provide a copy of a reference which is factual in nature.
Some employers choose to disclose factual references in an anonymous format, therefore protecting the referee's confidential information. It may be reasonable to disclose as much of the reference as possible without the referee or other third party’s consent. Employers can conceal the author's name and other identifying particulars. This means the reference does not disclose any information about a third party, such as the person who wrote the reference. The third party can also consent to the disclosure.
References given by an ex-employer
There is no legal obligation to provide a reference at all. But once any reference is provided, the author owes a duty of care to both the ex-employee and the reference recipient. Case law has established that references must in substance be true, accurate and fair, and must not give a misleading impression. An unfavourable reference can result in the prospective employer withdrawing an offer or dismissing an employee during their probationary period.
If the individual has evidence that the ex-employer provided a negligent, factually incorrect, or misleading reference, they could still commence litigation and seek an order for disclosure of the reference as part of that litigation. Care must therefore always be taken when providing references as content of a reference may need to be disclosed in litigation, regardless of whether there was an exemption from a SAR.
References received by a new employer
If a reference contains information the employee already knows, such as employment dates and absence records, there may be low risk for the new employer disclosing this despite the exemption. Some information relating to performance may also have been discussed already with the employee as part of an appraisal system.
If it is not clear whether the employee knows the information already, the prospective or new employer could ask the ex-employer if they object to the reference being disclosed and, if so, its reasons for objecting. It may be possible to withhold information, for example, by removing the name and address of the manager who gave the reference.
If there is a realistic threat of violence or intimidation by the employee towards the ex-employer, it may not be appropriate to release a reference.
Alternatively, a summary of the content of a reference may protect individual identities, while providing the employee with an overview of what the reference says about him or her.
In most circumstances and, in particular, where a reference is likely to have a serious impact on future job prospects, an employee may be able to obtain access to that reference in litigation, if the employee is prepared to take that step.
The types of discrimination claims resulting from a refusal to supply a reference is a complex area. Employers should just assume that references should not be discriminatory and, despite the legal complexities, assume that the right not to be discriminated against applies to former employees as it does to current employees. There will probably be a potential claim for direct discrimination and a victimisation claim. In some cases, indirect discrimination or whistleblowing claims are possible.
If an employer unlawfully discriminates in a reference and the former employee loses a job offer because of the discriminatory reference, then
- the manager giving the reference, as well as the employer can be held liable for the losses suffered by the former employee; and
- as with all discrimination claims, compensation is uncapped, so the ongoing job loss compensation can be very significant.
Many other claims involving references may involve the legal principles of contract, tort or defamation.
Issues relating to references normally arise after employment has ended. There has been some confusion and legal argument about which parts of the Equality Act 2010 relate to post-employment discrimination, and it is not clear if the Act covers all post-employment discrimination. Post-employment discrimination claims often involve employees claiming that a negative reference amounted to victimisation. Therefore, the best approach for some employers may be to provide ‘bare minimum’ references, although this should not be used to conceal something serious.
The literal interpretation of the Act suggests post-employment victimisation is not covered. It is highly unlikely that the government intended to exclude this form of victimisation from the legislation, so there appears to have been a mistake in the legislation’s drafting which may be rectified. There has been a lot of complex case law which is summarised below. Theoretically employers could argue that failure to provide references, or the provision of negative references, is not victimisation. This is a potentially expensive and risky strategy as even if a victimisation claim is not successful, some other form of discrimination claim may arise.
Employers should avoid refusing to give references unless this is a company-wide policy and even then, employers should not conceal something serious from prospective employers.
Despite the legal problems with victimisation claims, the safest strategy for employers is to assume that refusing to give a reference may attract some type of discrimination claim. The discrimination must arise out of, and be ‘closely connected’ to, a relevant relationship, such as an employment relationship. A refusal to provide a reference after the employment has ended is still closely connected with that relationship. In theory, the Act covers both the discriminatory content of references and a refusal to provide references at all.
Refusing to give a particular employee a reference for a discriminatory reason, for example, on grounds of sexual orientation (a protected characteristic under the Equality Act 2010), would be direct discrimination.
Also, an indirect discrimination claim may arise if an employer has a policy covering providing references. For example, giving former employees references stating only length of service and the number of days they were absent from work, regardless of the reason, may lead to an indirect discrimination claim. This is because the absences could be due to a protected characteristic (most likely disability). Unless the employer can objectively justify its policy, this is likely to be indirect discrimination against former employees who were absent because of their disability.
For example, a disabled employee with Citizens Advice was made redundant after eight years and, after a long period of unemployment, obtained a new role subject to satisfactory references. During his employment with Citizens Advice, he had taken a few periods of absence due to his disability. The reference to the new employer inaccurately overstated the periods of absence, said nothing positive about his eight years of employment and stated that Citizens Advice would not re-employ him. It was held that the employer had subjected him to a detriment because of his disability and due to the lost job offer, his losses, and compensation which was to be assessed out of court, were likely to be significant (Mefful v Citizens Advice Merton and Lambeth Ltd, 2017).
Employers should have robust internal procedures to guide managers in providing references. To avoid claims, employers who express opinions in references (as opposed to facts) must review the references for inaccurate or discriminatory material.
Particular care should be taken with absences because:
- Absences may be related to a protected characteristic and informing a prospective new employer about these could give rise to discrimination claims. Examples of protected characteristics which may be involved include maternity, disability or gender reassignment.
- Mentioning other absences may be classed as sensitive data, the provision of which breaches the Data Protection Act 1998. Simply giving information about someone’s total number of days’ absence in a specific period does not breach the Act, but details concerning sickness absence, for example, may be more problematic.
If in doubt, employers should take legal advice and/or agree references, seeking the employee’s express permission to disclose information.
Case law examples
The case Coote v Granada Hospitality (1999) made it clear that the previous discrimination legislation applied to refusing to provide references after the employee had left. Employers cannot escape victimisation claims by saying the legislation protects only current employees.
In Rhys-Harper v Relaxion Group (2003), the House of Lords confirmed that discriminatory acts carried out by an employer after termination fall within the anti-discrimination legislation, provided they are 'incidental' to the employment.
In Woodward v Abbey National (2006), an employee alleged that the bank’s refusal to provide an employment reference was because she had blown the whistle under the Employment Rights Act 1996 (ERA) whilst she was still employed. The Court of Appeal decided that provisions in the ERA covered detrimental treatment after termination.
The leading case concerning references under the Equality Act 2010 is Jessemey v Rowstock (2014). A 65-year-old former employee sued for unfair dismissal and age discrimination and was then given an unfavourable reference. He added a claim for victimisation stating that he had been victimised because he was already suing for age discrimination.
The Court of Appeal decided that victimisation of former employees is unlawful even though the relevant provisions of the Equality Act 2010 ‘taken on their own and without reference to any contextual material' suggest that post-termination victimisation is not covered. The Court of Appeal in Onu v Akwiwu (2014) also addressed this issue, although the case was appealed on other points.
The clear trend in all these cases shows that detrimental treatment should be prevented both before and after employment ends. Protection after employment extends beyond discrimination law and includes other types of detrimental treatment, for example, that connected to whistleblowing, jury service, health and safety and working time.
Giving ‘bare minimum’ references
It is increasingly common for employers to have a policy of providing a ‘bare minimum’ reference. This may entail, for example, giving brief details of an employee’s employment and position. If this strategy is adopted, it should ideally:
- be communicated to all employees at the outset of the relationship
- be applied uniformly to all employees
- state in the reference that it is the employer’s policy to only provide standard references with those basic details
- not be used as a means of concealing something serious.
In certain sectors, for example, those with safeguarding issues or regulated employers who are bound by the Financial Services and Markets Act 2000, ‘bare minimum’ references are inappropriate.
Taking up references
Employers are under no obligation to take up references for job applicants and former employers are under no obligation to provide one.
However, many employers do take up references after a job offer has been made, or before conducting interviews with all the short-listed applicants, in order to obtain objective information on the candidate’s suitability for the role.
Employers should usually ask for a minimum of two references, one of which should be the applicant’s present or most recent employer. Current employers should only be approached with the applicant’s permission. The following points should be borne in mind:
- For jobs involving the safeguarding of children or vulnerable adults, the details of any concerns that relate to the safety and welfare of children or vulnerable adults can be requested.
- Prospective employers may ask whether there have been any disciplinary procedures relating to the applicant, but this should be limited to current sanctions.
- Asking for an applicant’s attendance record and the amount of sick leave taken is common, but can lead to claims of disability discrimination if the reason for the applicant’s absence is disability-related.
Special points relating to family leave:
- There is no legitimate reason for prospective employers to ask previous employers about any type of family-related leave, for example, maternity and paternity leave taken, as this may open up accusations of discrimination.
- Prospective employers may, however, ask for confirmation of the dates of any unpaid parental leave already taken. This is because the prospective employer will need to know how much of an employee’s total statutory entitlement to 18 weeks’ parental leave per child remains untaken.
- Whether prospective employers should ask about shared parental leave is more complex and is generally best avoided, as employees should be left to initiate requests for shared parental leave when they are entitled and ready to do so.
Some previous employers may have a policy of providing ‘bare minimum’ references, or may not be willing to provide references at all.
Financial conduct and safeguarding
There is no general legal obligation to provide a reference for an ex-employee. However, in certain sectors, giving and obtaining references may be required by the rules of a professional body, or because there is a moral obligation. In summary, references for employees registered with certain professional bodies must be given within a set time and must give full disclosure of all relevant matters, including misconduct.
Employers in the financial services sector are generally subject to the rules of the Financial Conduct Authority (FCA) or the Prudential Regulation Authority (PRA). Although general employment law principles apply, for people going into certain categories of role such as senior management, employers must comply with additional reference requirements.
The main rules apply to banks (including branches of foreign banks operating in the UK) and dual regulated investment firms and insurers. The schemes are the Senior Manager and Certification Regime and the Senior Insurance Managers Regime.
The rules apply to employers appointing people to regulated roles, including a senior management, or a certification function under these regimes, such as senior insurance management. Employers seeking references must take reasonable steps to obtain references covering an individual's previous six years of employment.
Regulated firms providing references must:
- disclose all relevant information to determine if a candidate is fit and proper
- include details of any breach of the FCA/PRA Conduct Rules in the previous six years where there has been disciplinary action
- update any regulatory reference given to a regulated firm if new information comes to light that would have caused them to draft the reference differently, for example, calling into question that individual's fitness and propriety.
Disciplinary information includes formal written warnings, suspensions, dismissals and any sanction involving a reduction in or recovery of remuneration. There is a prescribed format for the references set out in Annex 1 of the FCA Handbook. Employers should usually allow the employee to comment on the allegations. Instances of serious misconduct committed over six years ago must also be disclosed.
The Personal Investment Authority and LAUTRO (Life Assurance and Unit Trust Regulatory Organisation) may also require the above information to be given by way of references.
Employers may be asked to agree a reference in a settlement agreement and could limit this to a standard reference for a non-regulated role or refuse to include a standard reference within the settlement agreement.
There is not one set of rules regarding candidates’ suitability to work with children, young people or vulnerable adults. Employers will, of course, check the criminal record of someone applying for a role, known as getting a Disclosure and Barring Service (DBS) check, and a more detailed check applies for roles involving healthcare or childcare. In addition, private and public sector employers will have their own procedures and requirements regarding references.
Factors to consider include obtaining references directly from the current or most recent employer – not from a colleague within the organisation, or relatives or friends – and requiring more than one reference. If an applicant is not currently working with children or vulnerable adults, obtaining a reference from both the last employer and the most recent relevant employer where the candidate was employed in work with children or vulnerable adults. In roles of this nature, general ’To whom it may concern’ references are not acceptable. Other relevant steps prospective employers should take include:
- Asking if the referee is satisfied that the candidate is suitable to work with children, young people or vulnerable adults. If not, asking for details of why the person might be unsuitable.
- Including a copy of the new job description and person specification in all reference requests.
- Seeking information on the referee's relationship with the candidate and their length of knowledge, and whether the referee thinks the applicant meets the person specification and has the ability and suitability to undertake the role.
- Requesting details of any disciplinary sanctions, allegations and reason for leaving, as well as any concerns raised relating to the safety of children, etc.
If an applicant does not give their current or most recent employer as a referee, can that employer be contacted for a reference?
Previous employers should specifically check before giving a reference that the employee or former employee is happy for the reference to be given. This is because giving a reference involves the disclosure of personal data and potentially ‘special categories’ of personal data. Similarly, employers must get signed consent from job applicants before taking up references:
- An employer should not therefore without specific written consent, seek to contact current or most recent employers for a reference.
- An employer should also respect requests from applicants not to contact their current employer until they have resigned.
From a data protection standpoint, consent is not always a valid reason for processing personal data. However, as references are given at the specific request of an employee, the lawful ground for providing personal data and special categories of personal data in references is that explicit consent has been given.
The Employment practices data protection code, issued by the Information Commissioner, contains guidance on the underlying data protection principles applicability to references.
What duty of care does an employer owe those who may rely on the reference?
The provider of a reference owes its recipient a duty of care under the principles of negligent misstatement if the recipient suffers loss as a result of inaccuracies in a carelessly drafted reference. The employer will breach that duty if the reference is false, inaccurate or misleading and a new employer may be able to claim damages against the ex-employer for any loss suffered as a result of a negligent or inaccurate reference.
In order to minimise the risk of liability for a negligent reference, employers may attempt to include a disclaimer stating that they will not be held liable for any loss suffered as a result of the provision of the reference.
Can suspected gross misconduct be omitted from a reference?
A former employer will be vulnerable to a claim from a subsequent employer if there is a serious issue of gross misconduct which the former employer knew of, or strongly suspected, but failed to mention in the employee’s reference.
Employers should, therefore, be particularly cautious when providing references for employees who have been dismissed for gross misconduct or who have left employment in similar circumstances.
If an employee leaves an employer under a cloud, or if concerns arise after the employee has left, the employer should disclose the issues accurately in references it gives for that employee. However, the employer should also be careful to make it absolutely clear if the allegations have, or have not, been investigated.
The main point is that the reference must be true, accurate and fair in substance and, therefore, must mention, for example, gross misconduct or events giving rise to a disciplinary process in a way which is accurate and correct overall.
In summary, if there are disciplinary proceedings, and the employer decides that the employee was guilty of dishonesty or other gross misconduct, then the employer can say in the reference it had a reasonable belief, following investigation, that the misconduct was committed by that employee and the employee’s dismissal was for that reason. If disciplinary proceedings do not take place, or are unfinished, the employer may say that the issue has not been fully investigated and no assumptions should be drawn about the employee.
In Bartholomew v London Borough of Hackney (1999), a local authority suspended an employee pending investigations into alleged financial irregularities. The employee then claimed race discrimination in an employment tribunal. It was agreed that the employee would take ‘voluntary severance’ and withdraw his discrimination claim, and that the disciplinary procedure against him would end.
Over a year later, the employee was offered a job at Richmond-upon-Thames Borough Council, which obtained a reference from Hackney Council stating the employee “was suspended from work due to a charge of gross misconduct, and disciplinary action had commenced (which) lapsed automatically on his departure”.
Richmond withdrew the job offer and the employee sued Hackney, alleging that although the authority’s reference was factually correct, it was unfair.
The Court of Appeal held the reference was not unfair, inaccurate or false and Hackney was not in breach of its duty. The key points to note are:
- there is a duty on an employer to ensure that references are true, accurate and fair in substance
- there is no duty on employers’ references to be full and comprehensive
- references must be looked at as a whole, rather than being broken down into individual sentences and checking that each individual sentence is factually correct.
Some employers faced with this dilemma may adopt a policy of providing a ‘bare minimum’ reference but this strategy should not be used as a means of concealing something serious.
It is usual in many cases for employees to obtain an agreed reference as part of a settlement agreement. Although employers may want to use a positive reference as a bargaining tool to pay a smaller settlement package, they should be aware of the risks associated with providing a reference in cases of suspected dishonesty or other gross misconduct.
Can an employer put a liability disclaimer on a reference?
Organisations may try to exclude or limit liability for the references they provide by using disclaimers. Employers should make use of disclaimers, as they may deter an employee or a new employer from making a claim, but they should be aware that disclaimers may be void if tested in the courts.
A disclaimer will normally say something to the effect that the reference is given confidentially and in good faith. Disclaimers will explain that although the employer believes the reference is accurate based on the information available, the employer and its directors will not be liable if inaccuracies lead to loss as a result of relying on the reference.
The effect of a disclaimer is to attempt to limit the referee’s liability in negligence. They are, therefore, subject to the Unfair Contract Terms Act 1977 (UCTA). A disclaimer used in these circumstances is void unless it is reasonable, and legislation sets out the test of ‘reasonableness’ (section 2, UCTA).
Reasonableness depends on the precise circumstances. If the information is factually incorrect a disclaimer is unlikely to be reasonable.
Employers are unlikely to be able to avoid liability for negligence or defamation by including a disclaimer. Therefore, liability cannot be excluded for misstatement of facts (performance, disciplinary record, and so on), which are normally known to an employer. However, a disclaimer in relation to an opinion on the employee’s suitability for a particular job may be reasonable, especially if the employee did not hold that position with the ex-employer.
A clause attempting to exclude liability for negligence must be carefully worded and brought to the attention of the employee before the reference is given. The best approach is prevention. Bearing in mind the possibility of liabilities in this area, employers should have robust internal procedures in place for giving references.
How should employers deal with a reference request for an employee engaged in a discrimination dispute with them?
If an employer gives a reference for an employee who is currently bringing a discrimination claim against the organisation, the employer should respond by concisely stating that a dispute is ongoing with the ex-employee, and that providing a reference at that time may prejudice the employer's position in the proceedings. The following case suggests that this approach is acceptable.
In Chief Constable of West Yorkshire Police v Khan (2001), a complaint of race discrimination was ongoing and the police force felt these proceedings might be prejudiced by the content of a reference. Khan alleged not providing a reference was victimisation which arose as the direct result of the proceedings for race discrimination he was bringing. The House of Lords said he had not been victimised. The employer's refusal was not based on the fact Khan had commenced proceedings, but from a genuine concern that its position in the case could be prejudiced by supplying a reference at that time.
How should employers deal with reference requests that ask about sickness absence for employees who have taken extended sick leave?
A number of issues arise following a reference request requiring information about sickness absence. In summary, the employer providing the reference should have explicit consent to provide special category personal data, such as physical or mental health information. Revealing only the number of days of sickness absence does not require explicit consent but this a disability discrimination claim risk.
Both the Equality Act 2010 and the Data Protection Act 2018 deal with these issues.
Equality Act 2010
Once a job offer has been made, employers can ask questions about matters such as sick leave when taking up references.
However, under provisions in the Equality Act 2010, it is unlawful for employers to ask job applicants questions about their health before they have been offered a role, subject to some exceptions related to specific circumstances.
For questions which are raised after the job offer has been made, the employer providing the reference should discuss the response to the question directly with the employee to ensure that the response is accurate, factual and creates an overall fair impression. For example, if an employee required extended leave to recover from an operation, with the employee’s permission the referee should identify the length of the absence due to hospitalisation. Merely stating the number of days absent will not give a fair overall impression.
Employers must remain aware of disability discrimination where the employee’s disability has necessitated absences (see Disability discrimination Q&As).
A recent case law example is the EAT decision in Pnaiser v NHS England and Coventry City Council (2016). A local authority manager was disabled and, despite promotions and positive appraisals, her employment was terminated after several sickness absences. The settlement agreement included an agreed reference. She was later offered a job with the NHS but her former line manager confirmed in a telephone conversation that Pnaiser had had significant time off work and she would not recommend her for that job as she might struggle with the pressure. The job offer was subsequently withdrawn.
The EAT found against both the former and prospective employer in a claim for disability discrimination. The negative reference and the withdrawal of the job offer was unfavourable treatment as a result of the absences, which were disability-related. This was discrimination on the grounds of a disability.
Employers that have made a job offer but then get a reference revealing high sickness absence, should not simply withdraw the offer instantly. Instead, they should discuss the issue with the prospective employee to establish if they may have a disability. Then, with the employee’s consent, take specialist occupational health or other medical advice on their condition. They should then consider whether any adjustments are necessary and implement all reasonable adjustments. Only if no reasonable adjustments are possible may a job offer be withdrawn.
If employers agree references, they must stick rigidly to the agreed words. A prospective employer receiving an adverse reference related to sickness absence should consider if investigations are necessary before withdrawing the job offer.
Can employers’ liability include comments about an employee outside the context of a reference?
Yes, an employer can be liable for comments about an employee outside the context of a reference. However, such cases are rare.
An example of a case where an employer was held liable for statements made about a former employee that were not part of a reference is McKie v Swindon College (2011). In this case, Swindon College provided an art historian with a glowing reference when he left for City of Bath College.
Six years later, the art historian moved again, this time to the University of Bath. His role there included overseeing degree courses at certain colleges, including Swindon College where he had worked previously. A few weeks after he started, the HR director at Swindon College emailed the University of Bath saying that the college could not permit him on its premises or have him delivering education to its students. The email explained that the college had safeguarding concerns for its students and there had been serious staff relationship problems during the tutor’s previous employment there. The email commented that similar issues arose at the City of Bath College. On the basis of this email, the University of Bath summarily dismissed McKie.
The High Court held that the allegations in the email were largely untrue and that the HR department at Swindon College had been negligent in sending the email. In particular, the HR department should have adopted a formal procedure. The judge remarked it was “blindingly obvious” that the email would have an impact on the tutor’s employment situation, even though the HR director’s comments had not been motivated by malice. At the very least, the employer should have responded by setting up a formal meeting, a discussion, and an examination of McKie’s personnel record, and should have recorded the process that led to the decision, rather than just “winging off” an email.
The legal remedy used in the case was complex as there was no protection under unfair dismissal legislation against the University of Bath for the tutor, as he had less than the one year’s continuous employment required at that time.
This was not a normal reference situation, but the court found it was still just and reasonable to impose a duty of care under the law of negligent misstatement or misrepresentation. The damage suffered by the historian was foreseeable. The mere fact that a number of years had gone by did not mean that the relationship between him and Swindon College was no longer sufficiently close to give rise to any duty of care.
Therefore, the principle that applies in relation to references can be extended to other communications entered into in relation to ex-employees. Employers should avoid even casual comments regarding former members of staff as this may give rise to a duty of care, especially if this could have a detrimental effect on the ex-employee’s career prospects.
What issues arise when making job offers conditional on satisfactory references?
It is common practice for employers to make offers of employment expressly conditional on receiving references which are satisfactory to the employer receiving the reference.
The effect of such a clause is that the contract with the employee will not come into being unless or until a reference which is satisfactory to the employer has been received. However, this applies only if the employer has not allowed the employee to commence work.
If an employer allows the employee to start work before references have been received, the employee will have the same rights as any other employee, for example, in relation to wrongful dismissal (that is, breach of contract).