first_imgReferencesOn 1 May 2003 in Personnel Today In this series, we delve into the Xpert HR reference manual to findessential information relating to one of our features. This month’s topic…OverviewAn employer is not usually obliged to provide a reference for an employee orformer employee. This is the case whether the request comes from the employee,a prospective employer or any other third party, such as a bank or landlord.However, references are often given because a refusal can put the employee in adifficult position. Some companies have policies governing giving references toensure control over consistency and what is said. Once an employer chooses to give a reference, a number of legalconsiderations arise because claims may be made by the employee and recipientof the reference. However, if an employer makes a statement about a former employee that fallsshort of a formal reference and is not relied upon by any third party, theemployee’s claim for negligent mistatement will not succeed (Legal &General Assurance Ltd v Kirk, 2002, IRLR 124 CA). Duties to the recipientThe employer owes a duty of care to the intended recipient of the reference.If, therefore, an employer gives a negligent or careless reference, failing,for example, to mention the fact that the employee was actually incompetent attheir duties, the recipient will be able to sue the employer if they rely onthat reference and as a result suffer a financial loss (Hedley Byrne & CoLtd v Heller & Partners Ltd, 1964, AC 465 HL). The reference must in substance be true, accurate and fair, and must notgive a misleading overall impression (Bartholomew v London Borough of Hackney,1999, IRLR 246 CA). Duties to the subjectThe employer will also owe duties to the employee who is the subject of thereference. Again, that duty is to take reasonable care in the preparation ofthe reference and if, for example, the employee fails to secure a new jobbecause of a carelessly prepared reference, they will be able to sue theirex-employer (Spring v Guardian Assurance plc and others, 1994, IRLR 460 HL). The reference must be true, accurate and fair and must not give a misleadingimpression. However, this does not mean it has to be full or comprehensive(Kidd v Axa Equity & Law Life Assurance Society plc and another, 2000, IRLR301 HCQBD). Effectively, it means an employer must take care not to be undulyselective about the information it provides, if that information is likely togive a misleading picture overall. One occasion when there can be difficulties in reconciling the duties owedto the employee and recipient, is where the employment has terminated duringunresolved disciplinary proceedings. Here, before divulging any unfavourableinformation, the employer must make sure it genuinely believes the informationis true, must have reasonable grounds for that belief, and must have carriedout as much investigation into the matter as is reasonable in the circumstances(Cox v Sun Alliance Life Ltd, 2001, IRLR 448 CA). Liability for discriminationGenerally, employees cannot bring claims for discrimination against theirformer employer where the discriminatory act takes place after the employmenthas terminated (Jones v 3M Healthcare and others March 2002 IDS Brief 704).However, there is one exception to that, which relates to post-termination actsof victimisation on grounds of sex. Unlike the Race Relations Act 1976 and the Disability Discrimination Act1995, the Sex Discrimination Act 1975 must be interpreted in the light ofEuropean law, including the European Equal Treatment Directive. The European Court has ruled that victimisation of an employee that occursafter termination of employment (but that relates to a complaint about sexdiscrimination which took place during employment) is covered by that directive(Coote v Granada Hospitality Ltd (No.2),1999, IRLR 452 EAT). Although the scope of claims is limited, it can cover victimisation byrefusing to provide a reference or by providing an inaccurate and detrimentalreference. Miscellaneous points– Many employers aim to limit liability by adding a disclaimer stating thatthey cannot accept any liability for errors or omissions in the content of areference. The general view is, if the reference is simply giving facts thatare expected to be within the employer’s knowledge – such as the dates ofemployment or position held by the employee – the employer cannot excludeliability by such a disclaimer where the facts given are inaccurate. This is a result of the Unfair Contract Terms Act 1997. Often, however,employers are asked to express an opinion about the employee, perhaps inresponse to a specific question from the prospective employer, and althoughthere is no guarantee that a disclaimer will be effective, there is nodisadvantage in including one in those cases. – References should be marked ‘confidential’ and clearly for the attentionof the addressee only. There are two reasons for this. The first is that thelaw gives protection from a libel claim by an employee about inaccurateinformation in a reference in limited circumstances. This is where thereference is given by an employer (or ex-employer) to a prospective employer,if the employer giving the reference genuinely believes the contents to be trueand does not give the information maliciously. However, this protection applies only because the law takes the view thatthe employer and prospective employer have a common interest in exchanginginformation in this way. If, therefore, the reference is allowed to go to otherrecipients who do not have this recognised common interest, the protection doesnot apply. – The Data Protection Act 1998, section 7, provides that employees are notentitled to have access to any reference given in confidence by their employerif the reference is given for the purposes of the education, training oremployment (both present and prospective) of the employee. There is a slight loophole in the law in that the employee can ask their newemployer for a copy of the reference, but this is limited in that it does notallow the employee to automatically see a copy of a reference given by a thirdparty (such as a former employer) where showing the reference would identifythat third party. It can be disclosed to the employee only if the formeremployer consents, or it is reasonable to disclose without consent. The Employment Practices Data Protection Code (Part 1: Recruitment andSelection), issued by the Information Commissioner under the DPA, provides thatthe taking up of references is covered in section 2(4) of the code, which dealswith verification. It can be accessed at point checklist– Ensure the information given in areference is accurate or genuinely and reasonably believed, after adequateinvestigation, to be correct– Be consistent about the type of information provided and whenreferences are given – Try to limit the number of people within the organisation whocan give references– Mark the reference private and confidential – Try to avoid telephone/oral references– Consider whether a disclaimer would be appropriateQuestions and answersIs an employer obliged to supply a reference?Most employers are not obliged to provide a reference about anemployee or ex-employee, whether the request for a reference comes from theemployee, a prospective employer or any other third party such as a bank orlandlord. Some companies have set policies on giving references to include onlybasic information about the employee’s length of service and position held.What are the duties of an employerif it does supply a reference?An employer owes a duty of care to the intended recipient ofthe reference to ensure it is true, accurate and fair, and does not give amisleading impression. The recipient could sue if it suffers a financial lossbecause of a negligent or careless reference. The employer also owes a duty tothe ex-employee to take reasonable care in the preparation of the reference.If, for example, the employee fails to secure a new job because of aninaccurate or misleading reference, they will be able to sue their ex-employerfor damages.What duties does an employer oweto a former employee whose employment has terminated during unresolveddisciplinary proceedings?Before divulging any unfavourable information in a reference,the employer must make sure it genuinely believes the information to be true,that it has reasonable grounds for that belief and that it has investigated thematter.Should references always be markedconfidential?Yes. References should be marked ‘confidential’ and for theattention of the addressee only. This helps to protect an employer from apotential libel claim and gives protection under the Data Protection Act 1998,which says employees are not entitled to have access to any reference given inconfidence by their ex-employer. A reference can then be disclosed to theemployee only if the former employer consents, or it is reasonable for the newemployer to disclose it without the previous employer’s consent. Comments are closed. Related posts:No related photos. Previous Article Next Articlelast_img

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