You have an employee who has left and moved on elsewhere. You provided a short and quite favourable employment reference. However, his files have now been looked at closely and it has been discovered that his record keeping was not the best – there are lots of errors and he has stated jobs have been completed when they were not. You now receive a more detailed reference request from the new employer containing specific questions – What was the reason for leaving? Were there any weaknesses? Are you under a duty to answer these questions?
This is a very common scenario and most of us know that there is usually no legal obligation to provide an employment reference but if one is provided then you owe a duty of care to both the ex employee and the new employer. There has been much litigation in this area and the fashion now seems to be that employment references have been reduced to a mere “start date, end date, job title upon leaving”. However, what happens if you provide more?
In the case of Mark Jackson v Liverpool City Council, Mr Jackson was employed as a Social Worker at Liverpool City Council. After 12 years he left to join Sefton Borough Council and in doing so he was provided with a favourable reference from Liverpool City Council. A year later, Mr Jackson applied for a different job within Sefton Council, and a further reference request was sent out. However, on this occasion, the reference provided by Liverpool City Council referred to concerns and resulted in Mr Jackson failing to get the new job.
In providing the reference Mr Jackson’s former manager failed to reply to a question regarding whether she would re-employ Mr Jackson in the future and, in response to a question about Mr Jackson’s weaknesses, she stated that “There were some issues identified by his team manager in respect of recording and record keeping… This would have led to a formal improvement plan to assist Mark to make improvements in this area. Mark left the service before this process was instigated.”
When this reference was received, Sefton Borough Council made a telephone call to Liverpool City Council who explained that, following Mr Jackson’s departure, employees who had taken over his cases had raised some concerns that certain work and contact with individuals had not been carried out, even though the records suggested it had been done. However, it was also made clear during the telephone conversation that these allegations had never been formally investigated and Mr Jackson had been given no opportunity to comment on the allegations.
Sefton decided not to appoint into the new role and Mr Jackson pursued a claim of negligence against Liverpool City Council for damages in relation to the reference it had provided.
The Liverpool County Court initially found that, although the reference provided was accurate and true, it was ultimately unfair as it carried with it an unanswered, uninvestigated allegation which implied that Mr Jackson was unfit for employment and which Mr Jackson had no opportunity to respond to. There was therefore a failure in the duty. Liverpool City Council appealed.
The Court of Appeal found that the reference which had been provided was both true and accurate and questioned how Liverpool City Council could have honestly answered the questions posed by the reference without identifying the particular concerns which had come to light following Mr Jackson’s departure. The Court of Appeal placed particular emphasis on the telephone conversation which had taken place between Sefton Borough Council and Liverpool City Council and found that this formed an integral part of the overall reference provided. The Court of Appeal therefore found that it was fair to include cautionary remarks in the reference based on allegations which had been raised as it had been made clear to the recipient of the reference that these allegations had not been investigated or substantiated. The Court of Appeal therefore found that the reference was true, accurate and fair and Liverpool City Council’s appeal succeeded.
Learning point: This case is welcome relief for employers providing references. Concerns about lack of performance (or even potential misconduct) can be referred to in answers to specific questions – However it should be made clear whether these have been fully investigated. The more contentious the information provided, the more risk and the more likely a Court may find that the information provided created an unfair impression and therefore was a breach of duty. Proceed with caution.