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Case law: Employers should be cautious of giving oral references about ex-employees

Former employers giving oral references must take great care what they say, particularly where an agreement has been made with the employee concerned about the contents of a written reference, a ruling makes clear.

Legal Alert

This update was published in Legal Alert - January 2016

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

An employee was disabled and had taken a lot of sickness leave. She was made redundant and entered into a settlement agreement with her ex-employer, including an agreed (and bland) form of wording for any reference it was asked to give about her.

She applied for a new job and the new employer offered her the job subject to satisfactory references. As per her settlement agreement, the old employer gave a bland written reference about her to the new employer, limited to her dates of employment, job title and main duties. The new employer phoned the old employer for more information. He was told that while details could not be given, the employee had been off sick for a long time in her old job, which made it difficult to comment on the employee’s suitability for the new job. It was made clear, however, that the old employer’s representative the new employer was speaking with had not had contact with the employee for many months, and that had been when the employee was still off sick.

The new employer withdrew the job offer. The employee claimed the giving of the negative oral reference by the old employer was disability discrimination, and the withdrawal of the job offer was disability discrimination by the new employer.

The Employment Appeal Tribunal agreed on both counts.

Operative date

  • Now

Recommendations

  • Staff at a former employer asked to give an oral reference for an ex-employee should check whether they can do so, and take great care what they say, particularly where an agreement has been reached about the contents of any written reference given about them

Case ref: Pnaiser v NHS England & Anor UKEAT/0137/15/LA

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.

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