Is it unlawful to give an employee a "bad" reference?

11 June 2013

Worthingtons Solicitors advise on the implications of providing an inaccurate reference to an ex-employee, or prospective new Employer.

This is a question often posed by employers or managers in business when they receive a request for an employee reference. The request is usually by a previous employee or a prospective new employer on behalf of the said employee. In some cases the employer is tasked with drafting a reference that the previous employee would not consider favourable, which could have the end result of the worker failing to secure a new job.

Job offers are often made nowadays by businesses on the basis of a condition precedent; the job is secured should the employer receive satisfactory references. This situation makes the issue of receiving a satisfactory reference imperative and goes some way to protect the employability of a worker in the future.

It should be noted that there is a difference between a “bad” reference and an “inaccurate” one. An employer will be entitled to provide a reference that he believes accurately and objectively describes the employee and the working relationship. This may include representations that the employee does not agree with and shows the employee in a negative light. e.g. a statement by the employer that the employee had poor time keeping, or attendance record. Whilst this would have negative connotations for an employee seeking to obtain future employment, if it can be shown by the employer, by reference to contemporaneous documentation (such as written warnings, minutes of meetings, appraisal documents etc.) that the said worker had issues with the time keeping or attendance, whilst it may be perceived to be a '"bad" statement/reference by the employee, it will nonetheless be held to be accurate, and therefore lawful.

If a worker believes that he has received an inaccurate reference to his detriment i.e. failure to secure a post, he has the option of suing his employer for providing a negligent misstatement. The loss of the plaintiff in this instance would be the earnings he would have received had he secured the new job, but for the inaccurate reference. A negligent misstatement relates to a representation of fact which is carelessly made and is relied on by another party to their disadvantage.

A leading House of Lords decision, Spring v Guardian Assurance plc concerned the provision of an unfavourable reference by an Employer which prevented the ex-employee from obtaining the new post.

From an employer’s perspective, providing a factual reference in such circumstances is believed to be the least problematic for businesses. It limits any contentions of employees to contend that the reference provided is not accurate, unfair and negligent. It would also have the effect of pre-empting any contentions of discrimination and/or victimisation claims to the Industrial Tribunal.

It is advisable that all businesses nowadays have a policy on providing factual references only to all employees to avoid exposure to court proceedings such as those referred to above.

Should you have any concerns relating to the provision of a reference, or a reference you have received from a former Employer, you should seek legal advice without delay.

 

Niall McMullan is a Solicitor with the Employment department of Worthingtons Solicitors.  Submit any queries in relation to this article in the form below and a member of our Employment team will be happy to contact you. 

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