This article, was first published in People Management on 23 May 2011
McKie v Swindon College; Deer v Walford
Two recent cases demonstrate that providing a reference, or refusing to, can have legal consequences
The majority of employers recognise that references are a vexed issue, and are well aware of the potential legal consequences associated with providing them, whether they are positive or negative about the employee concerned.
These two cases are the latest in a long list of claims relating to references.
Negative re references
Providing a negative reference could amount potentially to negligent misstatement. In the first case, McKie's former employer had made factually incorrect comments in an email to the claimant's new employer that ultimately led to his dismissal. The email was not intended to be a formal reference but the High Court treated it as such. As the comments were incorrect, and the college had taken insufficient steps to verify them, it was held accountable f o r the consequences. The court confirmed that employers:
- have a duty to take reasonable care in preparing references, or similar statements, concerning an employee
- failing to fulfil this duty will be liable for any consequential loss suffered by the employee.
If a former employer makes inaccurate statements about an ex-employee to a new or potential employer, that employee could also pursue claims potentially for defamation, malicious falsehood and victimisation alongside claims for negligent mis-statement.
Refusing a reference
In the Deer case, the Employment Appeal Tribunal considered the potential consequences of refusing to provide a reference. Deer was pursuing sex discrimination proceedings against her former employer, a university college. She asked her former academic supervisor if he would provide a reference to a prospective employer. The supervisor, who had nothing to do with the discrimination claim, declined. Deer claimed that his refusal was due to her discrimination claim and was victimisation. The supervisor denied that his decision was in any way related to the discrimination claim and said he had only vague knowledge of its existence.
The EAT found there was no evidence to infer that the supervisor had any particular animosity toward Deer in relation to her claim. The claim was dismissed and Deer was ordered to pay costs.
Although this employee was not successful in her claim, the EAT confirmed that had there been evidence that the refusal to provide the reference had been in response to her claim, this could amount to victimisation. The outcome may have been different if, for example, a college employee involved with the claim had refused to provide a reference and there was evidence connecting that refusal to the claim.
What to do?
Employers often decide either to refuse to provide a reference or to give just a statement of service. However, these options are not always practicable and can also have legal consequences. But there are some simple steps employers can take to minimise the risks associated with references.
Employers should:
- take a consistent approach to providing references
- try to restrict references to confirmation of an employee's role and period of service, where possible
- if it is necessary to provide more information, give only basic factual information and avoid making assertions which are likely to be disputed by the employee
- ensure there are clear guidelines for managers on both the process for providing references and who is authorised to provide them
- avoid recommendations - positive or negative - to a future employer on whether the employee is suitable for employment
- consider including disclaimers in references which make clear the limits on the information being provided.
Case ref 2011 EWHC 469 QB and UKEAT/0283/10/JOJ
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
