Would you give a reference for Dr Nick Riviera? Providing references in regulated professions

Dr Nick Riviera, for the non-Simpsons fans among us, is a fictional character in The Simpsons.  Simpsons fans will remember his catchphrase “Hi everybody”.  He is a stereotyped shady doctor who performs medical procedures for cash.  Medical ethics go out of the window as does any regard for the wellbeing of his patients.  In one episode, one Dr Nick’s former patients can be seen with a leg for an arm and an arm for a leg – an insight into some of the good Doctor’s handywork.

If you were Dr Nick’s former employer, would you give a reference to his prospective new employer?  Bearing in mind that there is no general legal obligation to give a reference for ex-employees, would you be content with saying nothing and letting Dr Nick carry on ‘operating’ in the manner in which he does?

Many employers are familiar with the legal rules regarding references.  Let’s recap on the basics:-

  • There is no legal obligation to give a reference;
  • If an employer does agree to give a reference, a duty of care arises to ensure that the reference is true, accurate and fair – it must not give a misleading impression and an employer who breaches this duty can be liable to the ex-employee for compensation);
  • Many employers operate a general policy of giving only factual references with very basic details such as job title, start date and finish date.

What amounts to a misleading reference?

Case law has made clear that there is no requirement to give full chapter and verse about the employee.  However, being selective in the provision of information could result in a misleading impression.

What about regulatory considerations?

If the employee is registered with a professional body which is responsible for protecting public safety and upholding the public confidence in a particular profession, does that throw up any issues regarding references?  Potentially, yes.  For example, in Dr Nick’s profession, The General Medical Council provide helpful guidance about writing references which can be accessed here – here.

Scottish Social Services Council (SSSC) regulates many social service professionals in Scotland.  SSSC have Codes of Practice for both social service workers and for employers of social service workers.  One of the obligations imposed on employers of social service workers is to ensure that people are suitable to enter the social service workforce.  This is underpinned by a duty to seek and provide reliable references.

The law surrounding references is far from straightforward – take advice if you are in any doubt about what to say, or more importantly what not to say.

Bye everybody!

Jack Boyle
Associate – Employment Law

Who in Game of Thrones would make the best lawyer?

She was last seen evading the admiring glances of Tormund Giantsbane, who was delighted to find any female enter the Tinder radar of Castle Black.

We have also watched her smoulder in a steaming-hot bath tub with a naked and apparent platonic Knight-peer, Jaime Lannister, the Kingslayer.

Whilst her past with Renly and Jaime leads her Facebook relationship status to read “It’s complicated”, her confused emotions do not detract from the fact that, in my view, Brienne of Tarth possesses many of the essential characteristics which would make her the best lawyer in the Seven Kingdoms.

Brienne of Tarth would make the best lawyer in Game of Thrones.  And here is why:

Honesty and integrity

In a profession reliant on its officers being good to their word, who better to oversee the course of justice than the wielder of the “Oathmaker”? All good lawyers have an ethical duty to be honest. Brienne prides herself on her honesty and her integrity. She is the one character who, throughout the series’, cannot be said to have deceived anyone to aid an ulterior motive or to support her own personal agenda. Her integrity is visibly seen in her quest to become a knight. She is a stickler for procedure. Even when she meets Stannis Baratheon, for whom she has been relentlessly searching for to avenge the death of Renly, she maintains her cool, follows procedure and offers Stannis with the opportunity for some last words with no one else around to hear them. This unfailing integrity would be required in the legal profession.


When confronted with uncontrollable members of the Stark clan who had pillaged their own people, Brienne has no issues with giving them their just deserts. This is because she knows her loyalty lies with Catelyn Stark specifically and not the Stark clan as a whole. She has no ambitions of her own and acts only in Catelyn’s best interests. Brienne can already see where the boundaries of a conflict of interest lie. Throughout the series’ she shows immense loyalty to both Renly and Catelyn Stark, and goes so far as to state that their deaths do not release her from her vows. Brienne would do anything for her clients, and would generally always put their needs ahead of her own.


Brienne’s loyalty is exemplified in her resilience when undertaking tasks on behalf of Catelyn and Renly. It is safe to presume she would show the same determination when undergoing work for a client. The fact that Arya and Sansa Stark are presumed dead does not deter Brienne from searching for them. Where many had failed previously, Brienne is successful in locating both of them relatively quickly. Even when she is told by Sansa that she does not want her help, Brienne stays in close contact with her to ensure her safety and to be there when she did need assistance. Many again would have given up at this stage, exemplifying that her perseverance often eventually brings success.


It is fair to say that Brienne is not one to shirk away from getting her hands dirty and certainly not one to back away from a fight. Throughout the series’ she separately takes on two of the best swordsmen in the land in the shape of Jaime Lannister and the Hound. Despite facing formidable opponents, her resilience is rewarded on both occasions. An opponent who is easily underestimated is always a dangerous one and this applies in legal circles too. Brienne’s self-belief and fearlessness would ensure that she strives to obtain the best result for her clients.

Poker face

I personally would never want to play poker with Brienne. Her facial reactions give very little away. Who can forget that emotionless, over-the-shoulder smoulder which she shared with Jamie Lannister in that bath tub? Even when thrown in that pit with a bear and nothing but a wooden spoon to protect herself, her expression remained stoic. An important part of being a lawyer is being able to detach yourself emotionally from any situation which allows you to remain objective. You require to stay cool under pressure and not lose focus of what you are arguing for. Combine this trait with Brienne’s fearlessness, and who else would you want fighting your corner in a courtroom?


So she can’t ride a fire-breathing dragon. Nor can she come back from the dead or harness the fire magic.  However it’s Brienne of Tarth who possesses the characteristics required to make her the best lawyer in the Seven Kingdoms.

Brienne’s unhinged loyalty and fearless approach to confrontation would make any client comfortable in her shadow. She would literally (and figuratively) fall on her sword for her client.

Forget about “Game of Thrones”. Brienne of Tarth is the “Dame of Tomes”.

Andrew Wallace 
Solicitor – Employment Law

Employment Termination Payments Reforms to tax treatment but £30,000 exemption to remain

Proposals in relation to the tax treatment of termination payments are set to take effect from April 2018.  HMRC is currently consulting about the draft legislation which is to underpin the reforms.

Under the proposed new system, the first £30,000 of any payments resulting from termination of employment will remain exempt from income tax.  In addition, termination payments will continue to have unlimited exemption from employee national insurance contributions (NICs).

Notable changes include the payment of employer NICs on payments above the £30,000 threshold (which are currently exempt).  Notice payments are also to be subjected to income tax and NICs in all cases where payment is made in lieu of all or part of the notice period.  This is aimed at removing any ambiguity under the current system where non-contractual payments in lieu of notice create a slightly grey area in terms of tax.

Any payments which are made towards injury to feelings will also subject to tax under the new system thus removing the current uncertainty over this type of payment.

The proposals are intended to strike a balance between supporting those who lose their job and safeguarding against abuse of the £30,000 exemption.

The consultation closes on 5 October 2016 and can be viewed here.

Jack Boyle 
Associate Solicitor – Employment Law

Key differences between “without prejudice” conversations and pre-termination discussions

Settlement agreements can be a very effective, amicable way of bringing a problematic employee’s employment to an end. There are generally 2 ways to initiate these discussions. One is through a “without prejudice” conversation. The other is through a “pre-termination negotiation”. Whichever road the employer chooses can have consequences that are worth considering.

Without prejudice conversation

A without prejudice conversation can only arise when there is a dispute between the employer and the employee. This may be in the form a grievance or some other kind of dispute. If there is no dispute, any such conversation will be admissible in the courts. The key facts to remember are as follows:

  • There needs to be a dispute
  • The fact that negotiations have taken place can be used in the future as evidence, but not the content of those negotiations
  • The inadmissibility of these conversations can be waived if both parties agree
  • It is difficult to remove privilege on the basis of the conduct of parties – a party must act with “unambiguous impropriety” before the privilege is removed.

Note too that the content must be a genuine attempt to settle a dispute. If a communication merely sets out a party’s right and does not make an offer to negotiate, despite the fact it is marked “without prejudice” this information may well be admissible in the courts.

Pre-termination negotiation

A pre-termination negotiation does not require a previous dispute between the employer and the employee, but the privilege only arises in cases of unfair dismissal. It is a discussion between employer and employee, designed to bring the employee’s employment to an end amicably. If the matter gives rise to discrimination, whistleblowing or any other automatic unfair dismissal claim, the privilege will not stand. The key facts to remember are as follows:

  • This only applies in respect of unfair dismissal claims
  • The fact the discussions themselves have taken place is inadmissible
  • The inadmissibility cannot be waived by both parties
  • It is easier to remove privilege than a “without prejudice” conversation– it only requires “improper behaviour” by either party

Note too that both types of conversations can be waived if there is to be an application for costs going forward.

Pros and Cons

There are pros and cons to the privilege arising for both of these types of discussion, the particulars of which are complicated. Employers have been undone by not being aware of the differences in the past. Remember to look before you leap and think before you speak. Don’t prejudice yourself by using “without prejudice” incorrectly.

If you require any assistance on which type of procedure to use, please get in touch with us at Blackadders and keep your eyes peeled for our free seminar in October.

Andrew Wallace 
Solicitor – Employment Law

More “sickies” in the sunshine?

Medical practitioners have recently motioned for the current period for self-certification of absence to be extended to 14 days.  Under the current system, an employee can self-certify for absences from work for up to seven days (including weekends).  Where the absence extends beyond seven days, the employee is required to provide a “fit note” from his or her GP certifying him or her as unfit for work.

The rationale behind the motion is to free up valuable GP time to focus more appointments on people with acute or chronic conditions.  It is understood that a large number of GP appointments are taken up with employees who have reached the end of the current seven day self-certificate period, who remain unfit for work and who need a GP to sign a “fit note” to cover the employee until they are well enough to return.  A GP has the same appointment time for every patient and they do not have advance notice of the reasons behind each appointment.

The more cynical employers out there might be of the view that doubling the period available for self-certification doubles the scope for abuse of the system.  Doubtless there are employers who see regular patterns of absence with employees returning to work just before the requirement to visit the doctor for a fit note is triggered.  Equally, there will be many hard working, conscientious employees out there who beat themselves up about using a rare sick day when they can barely move out of bed!

Would this development have a huge practical significance?  Employers will certainly be well advised to revisit their absence management procedures if this development gets approval.  Employees should be required to personally telephone their line manager or HR department before their allotted start time on each day of self-certified absence to detail the reason for the absence and expected timescale for return to work.  Employers should also keep track of their sick pay provisions – an employee who is only entitled to the minimum statutory sick pay (currently £88.45 per week) is less likely to take a two week sickie than an employee who is entitled to full pay.  The proposal is unlikely to make any impact on the shorter absences, for example, in respect of Mr Friday night/Monday morning who pulls a sickie due to a hangover.

Employers should also remember that disciplinary action can be taken against malingerers.  Where an employer has evidence which contradicts an employee’s explanation for absence, the disciplinary procedure may need to be invoked.  Dishonesty is potentially misconduct.  An employee who exaggerates or lies about their health to justify an absence is dishonest.  Some may be of the view that it is easier to get away with a “sickie” during a period of self-certification than it would be at a later stage when a doctor’s line is required.  However, there was a recent case in the Employment Appeal Tribunal where the employer was judged to have fairly dismissed an employee for lying about the reasons for absence, even where the employee’s absence was backed up by an occupational health report.

If the proposal does go through, employers should be (as a minimum) amending their absence reporting procedures to bring these up to date.

Jack Boyle

Redundancy Masterclass: 14 September @ Blackadders Offices Dundee

Redundancy has become a complex area of law where the simplest of errors can potentially be costly for employers.  This session is intended for HR professionals who have some knowledge of the law on redundancy and who may require to conduct such exercises in the future.

Our award winning Employment team intends to cover the practicalities of a redundancy exercise including:

  • Individual and collective consultation
  • Voluntary redundancy exercises
  • The principles of bumping and employees on maternity leave
  • Entitlement to time off to look for other work and redundancy pay
  • Lay-offs and short term working
  • Renewal of contract, re-engagement and trial periods

As well as covering the up-to-date law and recent employment tribunal decisions on work place redundancies, delegates will leave the training session with a raft of style letters, suggested agendas for consultation meetings and associated documents which should allow the delegates to carry out a lawful, robust and efficient redundancy exercise.  Simon will also give some tips on how to limit risk during the process so that, if faced with an employment tribunal claim in the future, this can be resisted swiftly and effectively.

  • Simon Allisonhead of employment law, regularly assists clients with ongoing redundancy exercises and is accredited by the Law Society of Scotland as a specialist in employment law.  Simon is ranked in Chambers and Partners as a leader in his field.
  • Blackadders was named the Employment Team of the Year 2016 at the Scottish Legal Awards in Edinburgh earlier this year.


  • Date: 14 September, 9am-11am breakfast seminar (catering will be provided).
  • Location: 30 & 34 Reform Street, Dundee DD1 1RJ.
  • Cost: £25 per delegate.
  • Registering: If you would like to attend this seminar, please send an e-mail to scott.grant@blackadders.co.uk to book your place. Payment will be required in advance of the seminar. Payment can be made by cheque payable to BlackaddersLLP which can be sent to Blackadders, 30 & 34 Reform Street, Dundee, DD1 1RJ, marked for the attention of Scott Grant.

Take a Pikachu at the new-est Pokemon Pest: Singapore employee fired for social media misconduct

Are you excited about Pokemon Go coming to the UK?  I can think of nothing better than spending my lunchtime racing round the city centre with my smartphone and my team trying to capture the latest Pokemon characters.  Will I find a Charizard in the Caird Hall?  Will there be a Dragonite lurking in Bank Street?  Either way, I am going to try and contain my excitement about this new game and, unlike a Singapore resident, resist temptation to use social media as a vehicle for my uncontrollable anticipation.

Be careful what you post! An employee had their contract terminated for an outburst on Facebook related to the new smart-phone Pokemon game. 

Mr Truyen was allegedly sacked by his employer after a profanity-laden rant on Facebook inspired by the unavailability of this smartphone game in Singapore.  He posted that Singapore was filled with “stupid people” and said that the national IQ would fall if he left.  Unfortunately for Mr Truyen, his posts were picked up by his employer who subsequently apologised for his comments and proceeded to terminate his employment.

Although this incident occurred outwith the UK, it is a prime example of how employers should be careful about offensive posts which purport to have come from their employees.  Employers should be proactive in understanding the various social media forums, creating policies, monitoring and educating staff about social media usage.  They should also be reactive in terms of taking action against offending employees, where appropriate.  If in doubt, employers should take legal advice as a matter of urgency.

So do not drive yourself into having a complete cream Jigglypuff because Pokemon Go is not yet available in the UK.  Similarly don’t risk reducing your CV to Ash solely on account of this issue.  If you take a quick Pikachu at this recent turn of events, I shouldn’t need to Raichu a letter outlining the dangers in combining Pokemon Rage with social media and the subsequent risk of getting Blastoise’d from your employment.

Simon Allison
Partner – Head of Employment Law