A recent Employment Tribunal decision serves as a reminder of the care that should be taken when giving a reference for a former or current employee.
In the case of Mefful v Citizen’s Advice Merton and Lambeth Ltd, Mr Mefful had been made redundant by Citizen’s Advice and had brought proceedings for unfair dismissal and disability discrimination. Whilst those proceedings were ongoing he applied for and was appointed to a new role having been unemployed for three years. The offer was subject to satisfactory references which the new employer sought from Citizen’s Advice in the form of a standard questionnaire. In responding to the questionnaire Citizen’s Advice answered some questions incorrectly (notably in relation to his sickness absence which was over-estimated by 64.5 days with no explanation), stated they would not employ Mr Mefful again, and declined to answer all of the questions.
Following the withdrawal of his job offer, Mr Mefful brought a new claim for victimisation and disability discrimination against Citizen’s Advice relating to the provision of the reference. The Tribunal found his claims on the whole to be well founded and rejected Citizen Advice’s assertion that the reference provided was ‘true, accurate and fair’. Whilst only an Employment Tribunal decision, the case is a useful reminder of the need for you to exercise caution when providing references whether for current or former employees.
You generally have no obligation (save in specific sectors such as finance) to provide a reference for former employees. However, not doing so when other employees have been provided with references can lead to allegations of discrimination. When a reference is provided, a duty is owed to both the subject of the reference and the recipient to take reasonable care to ensure that the reference is true and accurate, and is not misleading. A failure to do so can lead to claims from either the employee or the recipient and it is therefore crucial to ensure that whenever a reference is provided this is well thought out and a consistent approach is taken.
Our guidance is therefore to follow these simply rules:
- agree from the outset what type of reference will be provided and by whom. It is important that all those who may be asked to provide a reference understand your approach. Typically, you should have simply confirm dates of employment and job titles. Maintaining a consistent approach should avoid allegations that a discriminatory approach is being taken and assist in maintaining the accuracy of the information provided.
- have a single point of contact for reference requests – facts can be checked against the records held for employees or former employees (such as dates of employment, absences, disciplinary record etc) which will avoid the use of inaccurate data or misleading information.
- ensure data is checked before sending – this was particularly important in the above case. As Information concerning an employee’s health is classified as sensitive personal data under the Data Protection Act so should not be processed (ie disclosed to a prospective employer) without the employee having consented to this.
- remember the content of a reference may be disclosable in response to a subject access request. Access to a reference from a current employer is currently exempt from disclosure by the employer under the Data Protection Act. However, this does not prevent the employee from seeking disclosure from the recipient of the reference you provide. It is safest to assume that the individual will be able to obtain a copy of the reference.
- where an individual has been dismissed it is perfectly fair to state that in a reference and not doing so may result in a reference being misleading or you you can choose to provide a reference which says nothing at all about the end of the employment
- don’t raise new issues – make sure that the employee is aware of any complaints or performance concerns that are referred to in the reference. Having said that, don’t give a glowing reference if the employee’s performance has been far from exemplary.
But watch out for disability discrimination
As in the case of Mefful, issues can arise when providing information about absences which are disability-related. Where you have consent to disclose information about the absences and the reasons for this, it is best to do so. Rarely will it be reasonable to simply state absence levels (especially if they are high) without any explanation. If it is your policy to discount disability-related absences then consider whether these oughts to be included in response to a reference request.
Consider outstanding disciplinary matters
Where an employee resigns pending disciplinary action it is often done so as to ensure a ‘clean’ disciplinary record. In these circumstances if information is provided about the reason for employment ending, it may be misleading to simply state that the employee resigned without giving some context to this. The Courts have confirmed that a former employer will not be in breach of its duty of care to an employee if it provides a reference giving details of disciplinary proceedings which were pending against the employee when they left its employment (as long as it is clear about the status of the proceedings). There is a risk if you do not provide this detail you will fail in your duty to the prospective employer to provide a reference that is not unfair or misleading, however if you include details of allegations which were not fully explored you also take the risk of a negligent misstatement claim from the aggrieved employee.