In the recent case of Jackson v Liverpool, a county court decision that the employer was liable for damages as a result of an unfair reference was overturned on appeal.
The claimant had left the respondent’s employment in 2007 with a favourable reference. A year later he applied for a new post and requested a second reference from the respondent. On this occasion the respondent did not complete a question about re-employing the claimant and mentioned some problems of record keeping. These were issues that only emerged after the claimant had stopped working for the respondent and so had not been tested or proved by any inquiry. The respondent confirmed as much in a telephone call with the new prospective employer. The claimant was not offered the job and was subsequently unemployed for a year. He sued for damages and the county court judge held that the reference was unfair.
The general rule on references is that the employer is under no duty to provide a character reference for an employee or ex-employee […] but if he does provide a reference then he should take care to provide a reference which is true, accurate and fair, otherwise he may incur liability since he owes a duty of care to ex-employees. (Harvey on Employment Law)
In this case, the judge found that the reference was true and accurate but nonetheless conisdered it to be unfair, partly because the allegations could have been investigated. The appeals judge disagreed because he considered that “fairness must go to the overall balance of the reference” rather than attempting to dissect the fairness of individual statements within it.
This case demonstrates the difficult position many employers find themselves in when asked to give employee references. All references must satisfy the ‘true, accurate and fair’ test, but what is ‘fair’? In this case the employer was simply stating information which had come to light after the departure of the employee, and made clear that the concerns had not been investigated. But would it have been fairer to say nothing? The appeals judge pointed out that refusing to provide a reference at all could also be considered ‘unfair’ as this would have left even bigger questions about the conduct of the claimant, whilst providing a reference without mentioning the concerns could have left the former employer liable to a later claim from the new employer. He therefore allowed the appeal.