Employers are often rightly wary about providing references for former employees. When there is something negative to report, employers are advised to be even more wary. However, here is another case (it’s been an unusual month) in which the case went in favour of the employer.
In the case of Jackson v Liverpool City Council the Council provided a reference for Mr Jackson which included unsubstantiated concerns about his performance. Mr Jackson brought a claim which went all the way to the Court of Appeal, but they held that the reference was not unfair.
Mr Jackson had been a social worker with the Council. He applied for a similar position with another local authority which was offered to him subject to satisfactory references. In its response to a request for a reference, the Council outlined Mr Jackson’s strengths but also referred to 'issues' regarding his record-keeping. It noted that these would have led to a formal improvement plan but that Mr Jackson had left before it could be instigated. In a phone call to clarify these concerns, a manager at the Council told the prospective employer that allegations had been raised against Mr Jackson but had not been formally investigated, and so she could not give a positive or negative answer to the question 'would you employ the employee again?' Mr Jackson did not obtain the new position and subsequently brought proceedings in the county court seeking damages in respect of the Council's reference, which, he argued, implied that he was unsuitable for employment.
The Court of Appeal held that, in giving a reference on behalf of an ex-employee, the employer owes him or her a duty of care. In particular, reasonable care must be taken to ensure the factual accuracy of anything said that may cause a prospective employer to form a negative opinion. Although the allegations in Mr Jackson’s case had not been tested, the Council had made this clear to the prospective employer and the Court did not see how the Council could honestly have answered the questions posed by the reference without identifying the concerns that it had. Taken together, the reference and the subsequent telephone conversation were careful and fair. The Court also held that the Council could not be criticised for providing a reference in the first place, as to refuse could have led the prospective employer to reach even more negative conclusions.
Practical Tip: There is no obligation to give a reference (save in certain regulated sectors such as financial services) but if you do, you need to remember that you owe a duty to the subject of the reference and the person to whom it is given not to mislead. In our experience, and with great respect to the Court of Appeal, it is not unusual nowadays to refuse a reference or to give a bare factual reference and nothing more.