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Case law: Employee reference that omitted answers and explanations lands employer in legal hot water

Employers should ensure the references they provide which go beyond the basics are true, accurate and fair, and that omitting answers or failing to provide an explanation of information given is not misleading, otherwise they risk legal claims - as a recent ruling shows.

August 2017

This update was published in Legal Alert - August 2017

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 of eight years' standing was made redundant. While employed, he had two significant periods of absence - one for stress and grief, and the other for shoulder pain and total hearing loss in one ear.

He brought and won an unfair dismissal claim. A claim for disability discrimination was ongoing.

He applied for (and was offered) a new job, and his new employer asked his former employer for a reference, including whether there had been any absences from work (and why), and whether the former employer would re-employ him. It also asked other questions about his performance.

If an employer gives a reference, it has a duty to take reasonable care to ensure it is true, accurate and fair and that it is not misleading. This duty is owed to both the employee and to the new employer.

The former employer in this case gave information about the periods off work, but did not explain them. It said it would not re-employ him, and did not answer the other questions about his performance. The prospective employer withdrew the job offer because of the reference.

The employee successfully claimed victimisation and disability discrimination against his former employer. The Employment Tribunal (ET) found that: 

  • There had been a failure to explain the employee's periods of absence - to put them in a context, given his disability. They were also overstated.
  • The manager providing the reference had a negative view of the employee because of his legal claims against the employer. The gaps in the reference were, in the ET's view, deliberate, and intended to show the employee in a bad light.
  • The reference misrepresented the employee's eight years of employment, and was neither balanced nor fair.

Operative date

  • Now

Recommendation

  • Employers should ensure that the references they give which go beyond the basics are true, accurate and fair, and that omitting answers or explanations of information given is not misleading, or risk employment law and other claims

Case ref: Mefful v Citizens Advice Merton and Lambeth Limited ET/2302813/2015

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