References – approach with caution

When providing a reference for an ex-employee it is important to approach with an element of caution. Getting it wrong could lead to claims of discrimination, breach of contract, defamation, malicious falsehood or negligent mis-statement. Over the years case law has helped to highlight some key points to take into account when providing a reference.

It is important to note that there is no obligation placed on an employer to provide a reference. Nevertheless, in the case of Kidd v Axa Equity & Law Life Assurance Society [2000], it was made clear that if an employer does decide to provide a reference, he/she must take reasonable care to ensure that it is not misleading. Within this particular case, Mr Kidd decided to switch over to a different insurance company, Allied Dunbar. Equity & Law provided a reference which noted that there had been some complaints about Mr Kidd from various clients. As a result, Allied Dunbar decided not to engage Mr Kidd. Mr Kidd claimed damages against Equity & Law on the basis that they owed him a duty of care.

Mr Kidd lost his case and the Judge held that there was no duty on Equity & Law, “to give a full and comprehensive reference or to include in a reference to all material facts”. However, it was concluded that the duty that was placed on Equity & Law was a duty to, “take reasonable care not to give misleading information about Mr Kidd, whether as a result of the unfairly selected provision of information, or by the inclusion of facts or opinions in such a manner as to give rise to a false or mistaken inference in the mind of a reasonable recipient”.

Furthermore, in the case of Spring [1994], an employer was found to be “careless of the true facts of the case”, when a reference was provided that doubted the honesty and integrity of an ex-employee.

All the main principles can be drawn together in the recent case of Jackson v Liverpool City Council [2011]. Within this case it was found that if an ex-employer provides a reference, “he is under a duty to ensure that it is true, accurate, and fair. Fairness relates to nuances that could be drawn from what is said rather than any notion of the ex-employee having a mechanism to challenge the reference. It will very much depend on the circumstances of an individual case”.

The most important point to remember when writing a reference is that any issues or problems contained must be explained and backed up with relevant evidence. Additionally, when a reference is given that contains negative implications, it is important to state whether these concerns have been investigated or not.

Author: Lauren Blythe