Employers should ensure that references they give which go beyond the basics, are true, accurate and fair and that omitting answers or failing to provide an explanation of information given is not misleading, or risk employment law (and other) claims.
In one case an employee of 8 years’ standing was made redundant. While employed he had two significant periods of absence. One was for stress and grief and the other was for a shoulder pain and total hearing loss in one ear. He won an unfair dismissal claim because of his treatment by his employer.
He applied for a new job, and the new employer offered it to him. However, the new employer asked the former employer for a reference, including whether there had been any absences from work (and why), and whether the former employer would re-employ him. It also asked other questions about his performance.
If an employer gives a reference, it has a duty to take reasonable care to ensure the reference is true, accurate and fair and that it is not misleading – the duty is owed to both the employee and to the prospective new employer.
The former employer in this case gave information about the periods off work in the reference, but did not explain them. It said it would not re-employ him and did not answer the other questions about his performance. The prospective employer withdrew the job offer because of the reference.
The employee claimed victimisation and disability discrimination against his former employer. The tribunal found that:
- There had been a failure to explain the employee’s periods of absence – to put them in a context, given his disability. They were also overstated.
- The manager providing the reference had a negative view of the employee because of his legal claims against the employer. The gaps in the reference were deliberate, and intended to show the employee in a bad light.
- The reference misrepresented the employee’s eight years of employment, and was neither balanced nor fair.
Employers can also be sued for damages or, in some circumstances, even defamation or breach of human rights law if they give an untrue or misleading reference.
Employers should ensure that references they give, if they go beyond the basics, are true, accurate and fair and that omitting answers or explanations of information given is not misleading, or risk employment law (and other) claims. If they don’t give references, or only give the basics, they should explain this is their policy when responding to a request for a reference.
*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.*