The perils of messing up references

An Employment Tribunal’s decision has shown the importance of getting references right.

It is often an area which causes employers headaches. The law does not tell you what references should include or how long they should be; therefore it is up to employers to decide how much detail to provide.

The law

There is no general duty imposed on employers to provide a reference to a former or current employee. There are some exceptions, for example, there may be an express term in the employee’s Contract of Employment that states that you will provide a reference or in some highly regulated sectors, a reference will be required for a person to conduct certain functions.

If you do provide a reference, you should take reasonable care when writing it to ensure that the information you supply is fair, truthful and accurate.

The law does not dictate what you must include. If you wish, you can make it simply brief and factual, just specifying the key basic details, such as job title and start and end dates of employment. Alternatively, you may give a full or comprehensive reference.

If you provide a detailed long reference, it is important to be able to substantiate what you write. If you can’t, you can leave yourself open to challenge and claims. You could face claims by the employee for suffering loss if, for example, a prospective employer decides to withdraw a conditional job offer due to the reference you provided.

It is also important that you do not refuse to give a reference because of one of the protected characteristics specified in the Equality Act, for example sex, race, age, disability or religion. This would be considered discriminatory.

Additionally, a refusal to provide a reference may also result in a claim for victimisation if done in retaliation for an employee having brought discrimination proceedings or given evidence against you in the past.

Facts

In this case, Mr Mefful had been working at Citizens Advice Merton & Lambeth for over eight years in a number of roles. He was appointed as a Senior Adviser and then Specialist Services Manager after stringent recruitment processes.

During his employment, he suffered two significant periods of illnesses – the first period was as a result of his partner losing a baby and the second was due to shoulder pain and hearing loss. A Tribunal has since concluded that the he is suffering from a disability under the Equality Act.

He was made redundant. In his letter of dismissal, it clearly stated that “if you require a reference for any future potential employer, we will be pleased to provide one”.

After his dismissal, he submitted claims of disability discrimination and unfair dismissal. The employer admitted that the dismissal was unfair, but the claim for disability discrimination continued.

After three years of unemployment, he was offered a position as a Welfare Benefits Officer at One Housing Group Limited. The job offer was withdrawn after they received a reference from his former employer.

Mr Mefful made claims for victimisation and discrimination arising from a disability.

Decision

The Employment Tribunal found that:

  • Mr Mefful presented proof that he performed well during his time at Citizens Advice Merton & Lambeth. This was not challenged by the employer.
  • The Citizens Advice Merton & Lambeth had failed to complete parts of the form because he was pursuing a claim.
  • Sickness absences had been significantly exaggerated by the former employer.
  • The reason that the job offer had been withdrawn was because the new employer had been persuaded that Mr Mefful’s absences had been “disproportionate” and his former employer would not reemploy him because of his sickness absence. This was unfavourable treatment because of something arising from disability.

The Employment Tribunal said “The Respondent failed to provide any favourable information about the Claimant personally or about his performance on the form. This amounted to a detriment and it created what appeared to be an entirely false and misleading impression of his successful eight-year career.”

The Tribunal found that the claim for discrimination arising from disability and the claim for victimisation were well-founded.

Comment

It is advisable to provide employees with factual reference that just set out dates of employment, job title and duties. We would advise you speak to your Employment Law Adviser to avoid the costly pitfalls of getting references wrong.

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James Tamm

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