Writing a reference for an ex-employee is something that worries many employers. With some exceptions, there’s no compulsion for an employer to give a reference but if they do, an employer must be careful to ensure the reference is fair, and must take reasonable care not to give misleading information. The situation can be particularly tricky where there are outstanding but uninvestigated allegations relating to an ex-employee, and in this respect, a recent Court of Appeal decision in the case of Jackson v Liverpool City Council has given some useful guidance to employers.
This case started at the County Court where Mr Jackson commenced proceedings for damages in relation to a reference he had been given by Liverpool City Council. This reference prevented Mr Jackson from obtaining the job he had applied for, as it referred to certain negative reports and allegations which became apparent after he had left Liverpool City Council, and which had not been investigated. The court decided the reference was true and accurate, however, the reference was deemed to be unfair since there were unspecified allegations implying that Mr Jackson was unsatisfactory for employment. The Court held that Liverpool City Council could have investigated the concerns raised or, alternatively, it could have refused to provide a reference at all.
Liverpool City Council subsequently appealed and the Court of Appeal overturned the County Court’s decision. The Court of Appeal felt the reference was fair, as it made it clear that Mr Jackson had left before the matters for concern could be investigated. The Court of Appeal felt it would not have been fair for Liverpool City Council to have refused to give a reference for Mr Jackson, as this may have put him in a worse position. It also noted that the organisation requesting the reference could have discussed the allegations with Mr Jackson.
While employers must ensure they provide references which are true, accurate and fair, they must also make clear whether any concerns over conduct or behavior have or have not been investigated, and, where appropriate, that no assumptions can be made. Employers should also remember that generally they are under no duty to provide a character reference for an employee or former employee. Our employment team is available for any queries you may have on references or employment law in general.