In Jackson v Liverpool City Council the Court of Appeal has
given some helpful guidance to employers on the provision of
references in circumstances where there are outstanding but
uninvestigated allegations about a former employee.
Mr Jackson worked for Liverpool City Council for 12 years. When he
left Liverpool it provided a satisfactory reference to his new
employer, Sefton Borough Council. However one year later Mr Jackson
applied for another job within Sefton which required a further
reference from Liverpool. This reference raised a concern about Mr
Jackson's performance, who did not obtain the employment he
sought and was subsequently unemployed for a year. Mr Jackson
brought a claim against Liverpool for damages in relation to the
reference.
The second reference differed from the first because after Mr
Jackson had left Liverpool concerns had been raised about his work.
However Liverpool had decided that the allegations could not be
investigated because Mr Jackson was no longer an employee. When
communicating with Sefton in response to the second reference
request Liverpool made it clear that although issues in relation to
Mr Jackson's work had come to light they had not been
investigated. Liverpool also made it clear that that it was not
able to answer the specific questions asked by Sefton: "Would
you re-employ him? Do you know of any reasons why we should not
employ the applicant?" in either a positive or negative
manner.
The Court of Appeal concluded that the reference was true,
accurate and fair. Accuracy and truth go to the facts which form
the basis of the reference and fairness goes to the overall balance
of the reference and any opinion contained within it.
The Court of Appeal considered it key that the reference made it
clear that Mr Jackson left Liverpool before the matter could be
investigated and that investigation would have been fraught with
legal and practical difficulty. It also highlighted that not
providing a reference at all might have put Mr Jackson in a worse
position. Liverpool had made it clear that the allegations had not
been investigated and that if the allegations had been upheld they
would have resulted in a performance improvement plan rather than
formal disciplinary action. The communications between Liverpool
and Sefton which took place around the same time as the provision
of the reference were highly material and in the view of the Court
formed an integral part of the reference.
In conclusion, when providing references employers should have
regard to the general rule that an employer is under no duty to
provide a character reference for an employee or ex-employee, but
if they do they should take care to provide a reference which is
true, accurate and fair. Where there are concerns over an employee
or ex-employee's conduct or behaviour an employer should
disclose those concerns as part of the reference but ensure that it
does so in a measured and unprejudiced way, making it clear where
concerns have not been investigated and that therefore there is no
assumption of guilt or impropriety.
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 30/09/2011.