The problems of providing references
April 18, 2008
In a recent case, a social worker, Hazel Merriott-Brown lost her opportunity to work as a Family Court Advisor due to an unfair reference from her previous employer, South Tyneside Council. She was eventually awarded an out of court settlement of £36,000 due to her loss and subsequent ill health from stress caused by the incident.
Providing a reference from a former employee gives the referee significant responsibility in relation to all parties. Employers can incur liability to the employee in question as a result of a misleading or incorrect statement, as in the case above. Another example of this kind of situation is in TSB v Harris (2000), where a reference was provided that contained information about a number of customer complaints about Harris that had never been discussed with her. This action was deemed a breach of the common law duty to maintain mutual trust and confidence, and Harris was able to successfully resign and claim constructive dismissal. Employers can also incur liability to the new company that is taking on the employee, for example for financial losses suffered as a result of a negligent reference. If an employer fails to give a reference, or gives a negative reference, with a reason connected to the employee’s race, sex, age, sexual orientation, disability or religious belief, then the employee could make a claim for discrimination. It is therefore highly important that information provided in a reference is both accurate and fair, and that you are able to provide evidence of the facts.
Employers are under no obligation to provide a reference, unless they have been contractually bound to, for example as a contractual clause or as part of a compromise agreement, or where there is a statutory requirement to do so. Many employment lawyers advise companies to only provide a standard reference that provides employee start and finish dates, and the role they were employed to do. This helps to avoid risks of liability for that company, but leaves the other company without much information to make a decision on. Additionally, some information needs to be restricted due to data protection issues: for example you should not provide sensitive personal information about an employee (such as reasons for sickness absence) without their prior permission.
Personally, I’m not a big fan of the employment reference, I think the amount of companies willing to make truthful statements about an employee is diminishing due to the legal risks, and this is reducing the worth of the information provided.
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