Background

References are a tricky area for employers. Although there is no general duty to give a reference, in some circumstances not giving a reference can be held to be discriminatory and/or illegal and other grounds. Many employers are adopting standard factual references only, which is gradually leading to the reference system becoming safer, albeit ultimately fairly useless. If an employer chooses to give a reference then there is a general duty to take reasonable care and skill.

Facts

The Claimant worked for Liverpool City Council. He left to join another Council with good references. When applying for an internal move within the Council, one of his three references from his previous employer (Liverpool) contained caveats. It suggested there were record keeping issues. The reference however made clear these had not been investigated before he left. He subsequently failed to get the job and was then unemployed. The Court of Appeal rejected the Claimant’s claim for negligent mis-statement because the reference had stated the record keeping issue had not been investigated, it was not enough to prove negligence. The Judge considered the reference true and accurate, even though it referred to matters which were untested and unproven, as it made clear those matters were untested and unproven.

Comment

It is very important not to give a misleading impression in a reference or to make a statement that cannot be justified by the facts. Often the safest way for both employers and employees, wherever possible, is to try to agree a written reference before leaving.