UK: The truth, the whole truth and nothing but the truth - a hackneyed reference?

Last Updated: 23 June 1999

Whether to provide a reference and in what terms are often difficult questions for an employer to deal with, especially in relation to an employee with an ‘erratic’ employment record. In the case of Spring v Guardian Assurance plc & ors in 1994, the House of Lords held that an employer owes a duty of care to an employee when preparing a reference to use reasonable care to ensure it is true and accurate. A failure by an employer to exercise all reasonable care may result in a claim of negligence and damages. It is not always the case that an employer can avoid potential liability by refusing to give a reference, as in some circumstances there may be a duty implied into the contract of employment to provide one. Therefore any failure to do so could result in a claim for breach of contract.

In the more recent case of Bartholomew v London Borough of Hackney & anor the Court of Appeal has extended the duty in the Spring case beyond that of ensuring accuracy. Mr. Bartholomew was employed by the London Borough of Hackney which had suspended him and started disciplinary proceedings when it suspected he was responsible for financial irregularities. Mr. Bartholomew began a claim of racial harassment. However the parties reached agreement that Mr. Bartholomew would leave with nine weeks’ pay in lieu of notice on the basis he withdrew his race complaint. It was expressly agreed that any outstanding disciplinary action would end on termination of the contract. A year later another local authority asked Hackney for a reference on Mr. Bartholomew. Hackney stated in its reply that Mr. Bartholomew had taken voluntary severance but that at the time of leaving he had been subject to disciplinary action and was suspended on disciplinary grounds. The offer of employment to Mr. Bartholomew which had been made by the other local authority was withdrawn and he brought a claim against Hackney alleging that it had breached its duty of care by providing a factually correct but nonetheless unfair reference.

In its decision the Court of Appeal effectively extended the original principle in the Spring case and stated that when assessing whether an employer has discharged its duty of care to an employee, the courts must consider not only the accuracy or truth of a reference, but also the ‘fairness or unfairness’ of it and the ‘overall impression’ given to the reader. The Court of Appeal held on the facts of this case that Mr. Bartholomew’s reference was not on the whole unfair, inaccurate or false and indeed that if Hackney had omitted details of the suspension it may have failed in its duty not to mislead the recipient of the reference.

An employer’s precarious position in respect of references was also demonstrated recently in the case of Coote v Granada Hospitality Ltd. Although the main issue of the case was whether it was necessary for the employment to be subsisting at the time of any alleged victimisation before the applicant could bring a claim of sex discrimination in respect of it, the facts of the case alone should alert employers to the risks which may arise where a reference request is refused. In this case Mrs. Coote’s employer refused to give her a reference because she had brought a discrimination claim against them during her employment. She alleged that this amounted to unlawful victimisation. The Employment Appeal Tribunal held that Mrs. Coote was entitled to have her claim of sex discrimination heard by a tribunal even though she was not still in the employment of the employer at the time of the alleged act of victimisation. Clearly there can be risks in both giving and refusing references. Arguably had Granada given a reference but included in it, as a statement of fact, that Mrs. Coote had raised a complaint of sex discrimination against them during her employment, the employer may have been liable under the extended ‘fairness’ principle in the Bartholomew case.

What both cases make clear is that an employer needs firstly to carefully consider whether it is under a contractual obligation to provide a reference. Secondly, if not, are there any other consequences of refusal such as a potential discrimination claim as in the Coote case? Finally, if the employer does provide a reference it must be not only factually accurate, but also ‘fair’ in the overall impression it creates to the recipient. Employers should certainly ensure that all references are prepared by the correct personnel in their organisation who have the appropriate knowledge and training to minimise possible claims of negligence from either the subject of the reference or its recipient. The concept of fairness is a difficult one to apply with precision and how far an employer can go will vary depending on the individual facts of each case. How far this broad concept will be applied by the courts will only be clarified by further case law.

For further information please contact Susan Nickson, Trinity Court, 16 John Dalton Street, Manchester M60 8HS, UK, Tel: +44 161 830 5000

This article was first published in the June 1999 issue Employment Newsletter of Hammond Suddards.

The information and opinions contained in this article are provided by Hammond Suddards. They should not be applied to any particular set of facts without appropriate legal or other professional advice.

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