Job references are rumoured to be becoming a thing of the past. Word is out that provision of references is a dangerous game. Scare mongering ? Maybe not.
Back in 1995, a landmark case brought by an employ case brought by an employee against his previous employer, Guardian Assurance plc, established that employers have a duty to use skill and care when giving references.
So what does this mean for the employer who receives a request for a reference? Since 1995 various cases have provided an insight into what this duty of care actually involves. Employers are obliged to provide "true, accurate and fair" references which, taken as a whole, do not give an unfair or misleading impression. If this isn't enough, employers also have to bear in mind the issue of discrimination when deciding who to provide a reference for and what they are going to say. It is also clear that this is a duty owed not only to ex-employees but also to the prospective employer. Small consolation but, thankfully for employers, there is no obligation to give a full and comprehensive report.
The most recent case has gone one step further. A claim brought by Mr Cox against his previous employer, Sun Alliance Life Limited has gone all the way to the Court of Appeal. Mr Cox was suspended pending investigation following a rift with Sun Alliance. Whilst suspended, a third party alleged dishonest dealings on the part of Mr Cox. These allegations were not investigated nor discussed with Mr Cox and it was agreed that Mr Cox would resign. Mr Cox started new employment but this was terminated following receipt of a reference from Sun Alliance. The reference suggested he had been suspended pending investigations of the dishonesty allegations and would have eventually been dismissed.
The Court of Appeal found against Sun Alliance and set out three rules employers should abide by when giving references:-
The employer must genuinely believe the statements made;
They should have reasonable grounds for believing that the statements are true; and
They should carry out as much investigation as is reasonable into matters referred to in the reference.
All this prompts the question – when it comes to references, is silence golden? Certainly many employers seem to think so and prefer to take advantage of the fact that there is no obligation to give a reference in the first place. Other cautious employers are instead providing neutral references considered by ex-employees to be of limited value, stating little more than the start date, end date and position held. Protection is also sought from the inclusion of disclaimers but these take effect only against the prospective employer and even then may be challenged in court.
If you decide to provide a reference then bear in mind these top tips. Ensure that …
you have complied with the three rules set out in the Cox case;
you have all relevant info on the individual concerned;
the reference is factually accurate and fair in the overall impression it gives to the recipient. To do this stick to the facts rather than voicing opinions;
so far as possible, you identify who is authorised to write references and ensure they are sufficiently experienced and knowledgable;
you mark the reference 'private and confidential- for the attention of addressee only' to avoid a third party claiming that they relied upon the reference;
you are consistent in your reference policy – are you going to provide references for everyone, no one or on a selective basis? If you provide selective references double check you are not discriminating on grounds of sex, race or disability; and
avoid giving verbal references which can be misinterpreted. If such references are given ensure that you record exactly what was said.
