The High Court has recently decided that an employer was not negligent when writing a reference that contained negative opinions, formed following an internal investigation into conduct, without considering the fairness of that investigation.
Duty of Care – from an employer
The Court held that the standard of care to be exercised by a reasonable reference writer, should be expressed in broad terms. The nature of the duty of care in each case, will depend on the surrounding facts.
However, the judge identified certain common features of the duty, which are:
- To conduct an objective and rigorous appraisal of facts and opinion, particularly negative opinion, emerging from earlier investigations or otherwise;
- To take reasonable care to be satisfied that the facts set out in the reference are accurate and true and that, where an opinion is expressed, there is a proper and legitimate basis for the opinion;
- Where an opinion is derived from an earlier investigation, to take reasonable care in considering and reviewing the underlying material, so that the reference writer is able to understand the basis for the opinion and be satisfied that there is a proper and legitimate basis for the opinion;
- To take reasonable care to ensure that the reference is fair, in the sense of not being misleading either by reason of what is not included, or by implication, nuance or innuendo.
Fact checking – when writing a reference
The judge noted that if there are obvious errors on the material available to the reference writer, reasonable care is required that these errors are checked. If the reference writer has become aware of information which casts a doubt on the reliability or integrity of the facts or opinions in the underlying material, reasonable care would involve further inquiry. However, except where there is a “red flag” prompting further inquiry, there is no duty to examine the procedural fairness of the underlying investigation.
Factual references for employees
Employers who do not have a regulatory obligation to provide full references tend to take the sensible approach of providing factual references, limited to dates of employment and job titles, with a disclaimer.
Avoiding problems when providing references
The avoidance of a potential problem is far easier than arguing that what you have said in a reference was reasonable, and checked to an objective standard.
Employers and employees can also contact Acas who provide a useful guide with ‘references’ being covered on pgs 24/25 of the following document: http://www.acas.org.uk/media/pdf/q/j/Recruiting_staff_Nov.pdf
ENDS MAY 2018
About The Author: Richard Keen
Richard acts for employers and employees across a wide range of employment disputes. He has acted for senior executives in disputes over termination payments, share options and bonuses, as well as for employers helping them to manage redundancies and disciplinary matters.
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