References: a quick reference guide
A recent Employment Tribunal decision serves to remind employers of the care that should be taken when giving a reference.
The recent Employment Tribunal decision in Mefful v Citizen’s Advice Merton and Lambeth Limited serves to remind employers of the care that should be taken when giving a reference for a former or current employee.
In this case Mr Mefful had been made redundant by Citizen’s Advice and had brought proceedings for unfair dismissal and disability discrimination. Whilst those proceedings were ongoing he applied for and was appointed to a new role having been unemployed for three years. The offer was subject to satisfactory references which the new employer sought from Citizen’s Advice in the form of a standard questionnaire. In responding to the questionnaire Citizen’s Advice answered some questions incorrectly (notably in relation to his sickness absence which was over-estimated by 64.5 days with no explanation), stated they would not employ Mr Mefful again, and declined to answer all of the questions.
Following the withdrawal of his job offer, Mr Mefful brought a new claim for victimisation and disability discrimination against Citizen’s Advice relating to the provision of the reference. The Tribunal found his claims on the whole to be well founded and rejected Citizen Advice’s assertion that the reference provided was ‘true, accurate and fair’. Whilst only an Employment Tribunal decision, the case is a useful reminder of the need for employers to exercise caution when providing references whether for current or former employees.
Employers generally have no obligation (save in specific sectors such as finance) to provide a reference for their employees or former employees. However, not doing so when other employees have been provided with references can lead to allegations of discrimination. When a reference is provided, a duty is owed to both the subject of the reference and the recipient to take reasonable care to ensure that the reference is true and accurate, and is not misleading. A failure to do so can lead to claims from either the employee or the recipient and it is therefore crucial to ensure that whenever a reference is provided this is well thought out and a consistent approach is taken.
Here are our top ten tips for responding to reference requests to avoid the potential pain of getting this wrong:
1. Have a policy and stick to it
Agree from the outset what type of reference will be provided and by whom. This will ensure consistency in approach and limit the risks that arise when different people take different approaches to references. You don’t have to have a formal written policy spanning pages and pages of A4, but it is important that all those who may be asked to provide a reference understand the organisation’s approach. Typically you should have consensus on whether the organisation will simply confirm dates of employment and job titles or if more information will be provided and who is authorised to provide references (for example a central HR function or line managers) and, perhaps more importantly, who is not authorised to provide ‘official’ references. Maintaining a consistent approach should avoid allegations that a discriminatory approach is being taken and assist in maintaining the accuracy of the information provided.
2. Centralise replies
Linked to having a policy is considering whether it is better to have a single point of contact for reference requests or for approving these before submission, across the organisation. Doing so should ensure consistency in the style and content of references. Facts can be checked against the records held for employees or former employees (such as dates of employment, absences, disciplinary record etc.) which will avoid the use of inaccurate data or misleading information.
3. Ensure data is checked, appropriate consents are in place and clarify any uncertainties with the employee
As in the case of Mefful, errors in the information provided can lead to claims that the reference supplied is not accurate. It is imperative that any information provided is checked and, if in doubt, any concerns or issues should be clarified with the employee before the reference is finalised and submitted. Typical contentious issues include lengths of absences and the reasons for these. Information concerning an employee’s health is classified as sensitive personal data under the Data Protection Act so should not be processed (i.e. disclosed to a prospective employer) without the employee having consented to this.
4. Remember the content of a reference may be disclosable in response to a subject access request
Access to a reference from a current employer is currently exempt from disclosure by the employer under the Data Protection Act. However, this does not prevent the employee from seeking disclosure from the recipient of the reference you provide. Where a reference simply contains information that is known to the employee there should be no issue in disclosing it. If the reference contains or is likely to contain confidential information or opinions, you should be asked if you object to a copy of the reference being provided. However, even if you say you do not want your comments disclosed, the recipient may still be obliged to provide the reference if they consider it is reasonable in all the circumstances to comply with the request without your consent. The recipient will have to weigh your interest in having your comments treated confidentially against the individual's interest in seeing what has been said about them. As such it is safest to assume that the individual will be able to obtain a copy of the reference.
5. Basic facts v questionnaires
Given a copy of the reference may be obtained and the potential risks around providing comments or opinions, many organisations take the approach now of confirming factual information only such as length of service and job title. If you do so it is usual to confirm that it is your policy to provide a reference only in this format to avoid any negative assumptions being made about the limited reference provided. References in this style are usually fairly unhelpful to prospective employers but they are the least risky, and increasingly this is the format in which most references are provided. Where you do complete questionnaires, if you do not want to answer all the questions explain why not, rather than simply leaving sections blank.
Where an individual has been dismissed it is perfectly fair to state that in a reference and not doing so may result in a reference being misleading if anything qualitative at all is included. Where dismissal is confirmed, the reference should be consistent with the real reason for dismissal (or it won’t be accurate) and any written reasons provided, or you run the risk of a claim that the reference is not accurate. You can choose to provide a reference which says nothing at all about the end of the employment, but only if the reference just confirm dates of employment and job title.
7. Don’t raise new issues
Make sure that the employee is aware of any complaints or performance concerns that are referred to in the reference. Don’t use this as the first opportunity to highlight concerns where these have not been raised previously with the employee (ideally formally) and the opportunity provided to address the issue. Having said that, don’t give a glowing reference if the employee’s performance has been far from exemplary.
8. Watch out for disability discrimination
As in the case of Mefful, issues can arise when providing information about absences which are disability related. Where you have consent to disclose information about the absences and the reasons for this, it is best to do so. Rarely will it be reasonable to simply state absence levels (especially if they are high) without any explanation. If it is your policy to discount disability-related absences then consider whether these ought to be included in response to a reference request.
9. Outstanding disciplinary matters
Where an employee resigns pending disciplinary action it is often done so as to ensure a ‘clean’ disciplinary record. In these circumstances if information is provided about the reason for employment ending, it may be misleading to simply state that the employee resigned without giving some context to this. The Courts have confirmed that a former employer will not be in breach of its duty of care to an employee if it provides a reference giving details of disciplinary proceedings which were pending against the employee when they left its employment (as long as it is clear about the status of the proceedings). There is a risk if you do not provide this detail you will fail in your duty to the prospective employer to provide a reference that is not unfair or misleading, however if you include details of allegations which were not fully explored you also take the risk of a negligent misstatement claim from the aggrieved employee.
10. Get a second opinion
Providing a reference for the vast majority of employees will be simple and straightforward. However, for those employees who you know have been difficult or who have left the organisation under a cloud or where you are uncomfortable with the reference drafted, it is worthwhile seeking a second opinion before the reference is submitted, whether this is from a colleague or professional adviser. Ask how they would view the reference if they received it so you can consider whether it is accurate and not misleading.
Claire Hollins is an Associate in the Employment, Pensions and Immigration Team based in Manchester. If you require assistance in putting together a reference policy or responding to a tricky reference request please speak to Claire (firstname.lastname@example.org) or your usual Weightmans contact.