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Walking the tightrope with references

“It is a relevant circumstance that, in many cases an employee will stand no chance of getting another job, let alone a better job, unless he has been given a reference”

The words above are those of Lord Slynn in the case of Spring v Guardian Assurance [1995]. The precedent that emanates from the case is that an employer who provides a reference for an employee, owes them a duty of reasonable care in the preparation of such a reference.

It is a generally held view that employers are not under a duty to provide a personal reference for former employees. Employers are however actively encouraged to provide factual references where asked to do so but should steer clear of expressing any personal opinions unless they can be substantiated by company records (such as performance or disciplinary files).

The case of McKie v Swindon College [2011] extended the duty of an employer beyond the information that is contained in a reference alone. McKie made it clear that all information which is divulged about a current or ex employee must be true, accurate and fair. The sending of inaccurate information could leave employers on a sticky wicket, opening themselves up to claims for compensation for any negligent or deliberate errors that cause the ex-employee loss. An unfair reference provided by an employer could also lead to an award of compensation in the courts.

If an employer has a departing high calibre employee they must be careful not to “over-sell” the candidate to the new employer with an overly exaggerated reference. In contrast, if the departing employee was below par during their tenure with the employer, the employer has an obligation not to mislead the prospective future employer.

Our advice is that any information that you include in a personal reference must be objectively justified and a true, fair and accurate assessment of the individual. It is a much safer bet to steer clear of subjective comments that are open to scrutiny and stick to providing factual information that is difficult to dispute (such as job title, job description and length of service).

In light of the McKie decision employers must be careful disclosing anything further than standard information to a prospective future employer. The High Court described the internal practices of the employer in McKie as ‘slapdash, sloppy [and] failing to comply with any sort of minimum standards of fairness.’

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Paul Kelly

Partner and Head of Employment
Employment Law
0113 227 9249
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Paul Kelly Blacks Solicitors LLP