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MILS LEGAL UPDATEBack

MILsA rough guide to: references

References have been an HR headache for years now and the subject has been considered (yet) again in the recent case of AB v A Chief Constable (2014).

In this case the High Court had to balance an employee’s legitimate expectations and rights under the Data Protection Act 1998 (‘DPA’), against an employer’s public duties and the public interest.

In summary, the High Court held that a police force should not be able to send details of a former employee’s extended absence record and unproven disciplinary allegations to the new employer. The Court was forced to balance the public duty to inform the new employer of the outstanding disciplinary allegations, against the employee’s legitimate expectation based on an undertaking by the employer that only a standard reference would be given.

Factors to consider when seeking a reference

Contact with the applicant’s current employer should not usually be made without the applicant’s permission.

Employers would be well advised to include a job description with the request for a reference together with structured, relevant questions.

It is perfectly sensible for the new employer to make job offers ‘subject to satisfactory references’, indeed the very reason for asking for references is to ensure the candidate is suitable and trustworthy. Remember though that sometimes references aren’t supplied, through no fault of the employee, and that poor references can be unfairly given. Probationary periods can be a sensible way to deal with delayed/inadequate or non-supply of references.

Employees should be aware that employers frequently now also use social networking sites to seek out information on candidates for a job.

Top tips when providing references

An employer is not obliged to give a reference (save in limited circumstances). Although considering the significant impact on the ex-employee it is quite rare for an employer to refuse, unless there is a very good reason.

If a reference is given, there are essentially three ways to deal with a reference request:

(1) Give brief details providing dates of employment and position (often called a ‘standard company reference’ or ‘factual reference’

(2) Give a detailed reference with a disclaimer. This can often involve answering detailed questions from the new employer

(3) Allow personal references to be given separately to the employer

If the first strategy is adopted it is less contentious. It is also usual to state that it is the employer’s policy to provide standard references with only those details included. This is increasingly common as the risk against the former employer of claims is reduced.

If the second strategy is adopted it is important to be sure what you are saying is true and accurate and to exercise reasonable skill and diligence when considering your answers. It is also sensible to include a disclaimer of liability in respect of any negligent misstatement.

An example of a disclaimer would be:

The above information is given in confidence and good faith and is believed to be accurate, based on the information available to the employer. No responsibility can be accepted by [the employer] or any of its officers or employees for any errors, omissions or inaccuracies in the information or for any loss or damage that may result from reliance being placed upon it”.

Be aware that the subject of the reference could bring a claim for defamation, discrimination, malicious falsehood, negligence and/or a contractual claim and the future employer could bring a claim for negligence and the tort of deceit.

Finally be aware that, although there is no general obligation to provide a reference, failure to do so can still give rise to claims if tainted by discrimination or victimisation, or because the ex-employee had raised matters capable of constituting whistle-blowing.

Checklist

• Mark references ‘strictly private and confidential for addressee only’.

• Take care when commenting on suitability.

• Balanced view of the employee should be given, avoiding subjective comments.

• Comply with any company policy.

• If a brief factual reference is supplied, explain that it is company policy to provide such a reference.

• If lengthy reference supplied and disclaimer used, ensure disclaimer is reasonable.

• Ensure reference consistent with reason for dismissal.

• Ensure no inaccurate statements are included in the reference.

• Avoid discrimination.

• Ensure compliance with the DPA with regard to personal data and sensitive personal data (seek employee’s consent).

Comment

Employees are most businesses’ greatest assets and so employing the right candidates for employment is crucial. If an employer gives a reference it must be a fair and accurate one. Most employers tend to stick to a policy of giving a standard factual reference and this case highlights the importance of using disclaimers.

Robert Titcombe

Solicitor

Motor Industry Legal Services

Posted by Sue Robinson on 03/10/2014