Don’t mess yo’self with your references

It is a common misconception amongst employees that they have an automatic right to receive a reference from a former employer.  There is no legal obligation on employers to provide employee references.  There may be circumstances where employers can bind themselves to provide references, for example, by custom and practice of always providing references or under the terms of a settlement agreement.

An employer who does provide a reference owes a duty of care to both the recipient and the subject of the reference as to the factual content of the reference and the opinions expressed in it.  A reference must not give an unfair or misleading impression overall.  Many employers provide only basic factual references and conclude the reference with words to the effect of this information is given in good faith and we accept no responsibility for any loss or damage caused to the addressee or any third party as a result of any reliance being placed on it.”  Such an expression within the reference may displace the common law duty of care where the employer makes it clear that no responsibility is being assumed.

In AB v A Chief Constable 2014 IRLR 700, a police force employee resigned 13 days prior to a disciplinary hearing.  The employer supplied an initial factual reference which contained very basic employment details and made no reference to the impending disciplinary hearing.  The employer had arguably misrepresented the true position by omitting to mention the disciplinary hearing.  However, the High Court found that the employer was saved by the expression in the reference which made it clear that they assumed no responsibility for its content.  On that basis the reference read as whole was not misleading.  The first point to take from this case is that employers who include disclaimers in their references are wise to do so and those who do not should consider revisiting their reference styles.

The second aspect of the AB case concerned whether the employer police force should be permitted to send a more detailed second reference which did mention the disciplinary allegations (and which fairly recorded the employee’s response to the allegations).  The employee had applied for employment with another regulated public body.  The police force felt that they had a professional and ethical duty to provide a more detailed reference to the prospective new employer given the high standards associated with regulated employment.

The Court considered various factors in deciding whether to allow the force to send the second reference.  Consideration was given to the Data Protection Act 1998 (“DPA”) in relation to disclosure of the disciplinary proceedings.  The Court was required to balance the interests of the employee in non-disclosure of the data against the public interest in disclosure.  The Court decided that it would ordinarily allow such a reference taking into account the public policy considerations.  However, it decided that special circumstances existed whereby the employee had a legitimate expectation to receive only a basic factual reference.  The employee was told by a Chief Officer that he would get a standard reference.  The employer also had a policy and practice of sending only standard references.  These factors pointed to a legitimate expectation that the employee would receive a standard reference.  The Court decided that it would be a breach of the DPA to undermine these legitimate expectations.  The force was not permitted to send the second reference.

Employers should be careful when offering (or deciding not to offer) references.  This case makes it clear that a custom and practice of providing references or a promise of a reference can bind the employer.  Careful consideration also needs to be given to the DPA and whether disclosure of disciplinary matters is necessary.

Jack Boyle
Senior Solicitor – Employment Law

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