Although it does not set any new rules, a recent Court of Appeal("CA") decision (Jackson v Liverpool City Council) is of interest in two ways: first, the CA sets out and confirms the basic summary of the law which is that an employer is not obliged to supply a reference for an (ex) employee, but if he does so it must be true, accurate and fair; second, the case is a good factual example of the possible difficulty of applying the 'fair' limb in a case where the reference mentions matters which had not been formally investigated and determined.
The lack of any obligation on an employer to provide a reference is subject itself to two qualifications: a contractual obligation to do so may, rarely, arise but if so the rest of the summary above still applies. Also, employees who are FSA regulated must be provided with a reference if applying for another FSA regulated role
In the case in the CA the claimant had left the Council in 2007 for a new post, with good references. A year later he applied for another post, but a fresh reference from the Council (while generally supportive) contained a reservation about certain allegations that had been raised after he had left the Council's employment about records and record keeping during his employment. It was not suggested in the reference that, if true, he would have been formally disciplined for them. Further, when the potential new employer contacted the reference writer by telephone she made it clear that these were mere allegations which the Council had been unable to investigate further because the claimant had left; she said that she was unable to comment further in a 'positive or negative manner'.
As a result of all of this the claimant was not offered the post sought and was unemployed for a year before obtaining further employment. In his action against the Council for compensation for giving a false reference, the trial judge found that the reference writer had been truthful as to her involvement and actions; what she had written was true and accurate but the question was whether what had been said was fair. In the circumstances the judge held that it was not fair because it carried an implication of unsatisfactory conduct which had not been investigated, with no opportunity for the claimant to have refuted it.
The CA, though mindful of the difficult situation of the claimant, allowed the Council's appeal. They turned to a 1999 case (Bartholemew v London Borough of Hackney) which was crucial. In that case a mention of pending disciplinary proceedings at the time of termination in neutral terms was held to have been proper. The CA held that the judge in the Liverpool case had not taken the earlier case sufficiently into account and had been wrong to distinguish it on the basis that on the facts there were other courses of action that the Liverpool Council might have adopted. Also the judge was wrong to think the confirmatory telephone call was unimportant - the reference giver had expressed herself neutrally, leaving it to the recruiting organisation to take the allegations up with the claimant if desired.
Further, the CA held that (1) fairness in giving a reference requires an investigation into whether there were any unacceptable innuendos in otherwise true statements, not into whether other procedures might have been adopted by the reference giver and (2) it must be remembered that the reference giver also owes a duty of care to the recipient of the reference which could be breached by not disclosing issues of concern. Leveson LJ (yes, he of phone hacking fame) summed up the Court's decision as follows:
'In my judgment Liverpool cannot be criticised for providing a reference and cannot reasonably be criticised for including within it a cautionary remark based on allegations that had been made by three social workers themselves based on what four young people had independently said in at least one case supported by a parent. The account of these persons had not been tested and was certainly not being taken as true, but it was made clear on the telephone that the allegations had not been investigated. The judge accepted that the written reference was true and accurate; taken together, the reference and the subsequent telephone conversation were careful and, in my judgment, by no stretch of the argument unfair.'
It remains a difficult balancing act for an employer when faced with a situation like this or when asked to give a reference for someone who has left when something is hanging in the air, e.g. when an employee leaves of their own accord before a disciplinary process has got under way. It is often best to take advice before committing to paper but sometimes it may be safest to rely on the fact that an employer usually does not have any obligation to provide a reference and just say nothing at all.
