References

Key points

• As the High Court remarked in Lawton v BOC Transhield Ltd [1987] IRLR 404, an employer is under no legal obligation to give a former employee a reference. But, if he (or she) does do so, he owes a duty to that employee to take reasonable care to ensure that the opinions he expresses in it are based on accurate facts and, in so far as the reference itself states facts, that those facts are themselves accurate. When an employer approaches another employer for information and opinions about one of the latter's employees (past or present), it should be self-evident, said the court, that the employee in question has proffered his (or her) former employer's name as referee, that he is being seriously considered for employment elsewhere, that he is relying on the former employer to get his facts right, and that an adverse report would almost certainly result in his being taken off the short list or remaining unemployed for an unspecified period. In other words, the employer's duty of care extends not only to the person seeking the relevant information but also to the employee in respect of whom that information is being sought.

Defamatory references

• There are a number of pitfalls facing employers who provide inaccurate, dishonest or malicious references. An employee may be prompted to bring an action for damages if a reference supplied by a former employer contains false or derogatory statements about him (or her) which result in the loss of his livelihood or affect his ability to find work or pursue his chosen trade or profession.

  Note

  In Spring v Guardian Assurance plc [1993] IRLR 122, the High Court awarded damages and costs to an insurance salesman when it ruled that his former employer had been negligent in giving him a job reference that was the 'kiss of death' to his career. The reference, said Judge John Lever QC, was carelessly written, although not malicious. One of the main authors behind the reference, he said, had 'told a lie to bolster a conclusion he honestly believed to be true'. The other, while not malicious in intent, had failed to give 'a careful and accurate view' of the salesman's qualities. 'There should have been a careful and judicious review', added Judge-Lever, 'but his prejudice led him to play fast and loose with the facts.'

• If a defamatory reference is given in writing, it constitutes libel. If it is given orally (ie, over the telephone), it constitutes slander. For obvious reasons, slander is somewhat more difficult to prove than libel – which explains why many employers and personnel managers prefer to discuss a difficult employee's capabilities and recent conduct in person or over the telephone.
  
  
• An employer has three defences to an action for libel. He can plead, in the first instance, that the words used in the reference were incapable of having any defamatory meaning. He can also plead 'justification'. In other words, while admitting the truth of the employee's allegations, he can argue that the information given in the reference is true in substance and in fact. Finally, he can claim that the reference enjoyed 'qualified privilege', in the sense that the employer or person to whom it was given had an interest in learning of the employee's capabilities and shortcomings in order to assess his suitability for employment, and that no malice was intended. If either of the latter defences fails, the court will very likely order the employer who gave the reference to compensate the employee for the damage done to his reputation and employment prospects.

  Note

  It is because of the possible legal pitfalls that many employers nowadays refuse to supply more than a written statement of service – confirming a former employee's job title, length of employment, and his wage or salary at the time he or she left their employ.

Disclaimer of responsibility

• Giving an employee a wholly complimentary reference, which attributes to him (or her) skills, qualities and a level of competence which he does not possess, can be just as risky as giving him a reference which negligently misrepresents or downgrades his worth in the eyes of a prospective employer. Any employer who is deceived into hiring an employee on the strength of a commendatory or untrue reference may bring an action for damages against the employer who supplied the reference for the time, inconvenience and expense involved in taking-on an employee who is wholly unsuitable. To prevent this happening, an employer should always protect himself with a disclaimer of responsibility.
  
  
• As Mr Justice Tudor Evans remarked in the Lawton case referred to earlier, there is 'no reason why a disclaimer [in a reference] cannot be so framed as to exclude a liability not only to the recipient but also to the subject of the reference, and further to protect the actual servant who writes the reference. As to the subject of the reference, I cannot see,' he added, 'why an employer cannot effectively protect himself, either in the reference itself or by writing separately to the subject, indicating a willingness to give a reference but stating that it will be given without responsibility.
  
  
• Personnel managers and others charged with the responsibility for giving references (or 'vetting' them before they are issued) should ensure that every reference given to, or on behalf of, a former employee includes a statement to the effect that it is given 'without legal responsibility'. However, it is as well to sound a note of caution. While a disclaimer of responsibility couched in those terms will free an employer from liability when faced with an action for negligent misrepresentation, it unfortunately provides no defence against an action for libel. Indeed, it will be of little help if it can be shown that the employer (or person) who provided the reference deliberately and fraudulently misrepresented the employee's qualifications, skills, experience and capabilities.

The issue of confidentiality

• As a reference is usually given in confidence, an employer will not normally reveal its contents to the employee concerned without the express permission of the person or organisation who gave it. However, as the House of Lords remarked in the joined cases of Nasse v Science Research Council and Vyas v Leyland Cars [1979] IRLR 465, 'there is no principle in English law by which documents are protected from discovery by reason of confidentiality alone'. If a job applicant or employee believes that he (or she) has been the victim of unlawful discrimination or was denied employment (or dismissed) because of what was said about him in a reference, he has every right to apply to the tribunals or courts for a disclosure order.
  
  
• Under the Data Protection Act 1998, references issued by an employer (concerning an existing or former employer) are exempt from disclosure. But that exemption doesnot apply to references received by an employer from a former employer.

Written reasons for dismissal

• A sympathetic employer might well be prompted to provide a 'charitable' or vaguely-worded reference to a dismissed employee (or to a prospective employer) rather than undermine his (or her) chances of finding work elsewhere. However, an employer should be alert to the possibility that that same employee might well decide to exercise his statutory right under section 92 of the Employment Rights Act 1996 to be given written reasons for his dismissal. If there is any contradiction between the opinions expressed in the one and the statements made in the other, an employment tribunal might well decide that the employee's dismissal was unfair. 

  Note

  In Castledine v Rothwell Engineering Ltd [1973] IRLR 99, a dismissed employee produced a reference supplied by his former employer which stated that he 'had carried out his duties satisfactorily, often under difficult conditions'. The written statement of reasons for dismissal, also supplied by his employer, claimed that the employee had been dismissed on grounds of incompetence. When confronted with such conflicting evidence, an industrial tribunal had no difficulty concluding that the dismissal had been unfair.

Spent convictions

• Unless a former employee is known to be applying for a job in respect of which he (or she) is obliged to supply details of all criminal convictions – spent or otherwise – and the prospective new employer specifically asks for that information and gives reasons for doing so, an employer is under no legal obligation whatsoever to reveal particulars of spent convictions known to him when supplying a reference for that employee (section 4(2), Rehabilitation of Offenders Act 1974).