When giving a reference, an employer has a duty of care to an ex-employee to ensure that the information provided is true, accurate and fair.
In Jackson v Liverpool City Council, the Court of Appeal has given useful guidance on how to deal with the situation when concerns regarding an employee’s work come to light after he or she has left your employment.
Mark Jackson had worked as a social worker for Liverpool City Council (Liverpool) for 12 years before leaving to take up employment with Sefton Borough Council (Sefton). At that time, he received a favourable reference from his team manager at Liverpool. A year later, he applied for and was offered another post at Sefton, subject to satisfactory references. Although two such references were provided from previous employers, a reference provided by Liverpool contained some positive statements but also left two questions – whether or not Liverpool would re-employ Mr Jackson or if it knew of any reasons why Sefton should not employ him – unanswered and mentioned concerns about his record keeping. The referee stated that she could not elaborate as the concerns had arisen after Mr Jackson left Liverpool’s employment and had not been investigated. She did say, however, that they would have warranted a formal improvement plan rather than more serious disciplinary action had he remained with the Council. When she later received a phone call from Sefton seeking clarification, she made it clear that she was not in a position to answer the questions in ‘either a positive or negative manner’.
The offer of employment was withdrawn in light of the reference and Mr Jackson remained unemployed for a year. He brought a claim for damages in relation to the reference provided by Liverpool.
The County Court found that the reference provided by Liverpool was true and accurate but held it to be unfair because it carried with it an ‘unanswered, uninvestigated, unparticularised, unspecific allegation […] which the ex-employee had no opportunity to refute or answer’. Liverpool could have investigated the matter or refused to provide a reference at all. Liverpool appealed against this decision.
The Court of Appeal had some sympathy for Mr Jackson but took the view that the reference could not be said to be unfair. In the Court’s view, Liverpool could not be criticised for providing a reference and, in the circumstances, could not be reasonably criticised for including within it a cautionary remark. Sefton’s conversation with the referee was highly relevant as it formed an integral part of the overall reference provided by Liverpool. The referee had made it clear that she could not answer the questions in either a positive or negative manner. It was then a matter for Sefton to raise the issues with Mr Jackson himself. Had Liverpool failed to provide a reference, it was likely that more serious adverse inferences would have been drawn as a consequence.
The Court held that 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. This does not mean that there has to be some sort of fair procedure for the ex-employee to challenge an adverse opinion but is related to the ‘nuances or innuendo’ that might be drawn from the assertion.
Employers should exercise caution when issuing references. We can advise you if you are asked for a reference and are in any doubt as to how to proceed.
Partner Note
Jackson v Liverpool City Council. See http://www.bailii.org/ew/cases/EWCA/Civ/2011/1068.html.