References - allegations that have not been investigated

Friday, 23 September 2011 00:00

Most employers think carefully before providing a reference. And rightly so. An inaccurate or misleading reference can lead to a claim being brought by either the employee or the company who asked for it.

The basic legal position is that an employer is not obliged to give a reference about an employee unless there is a contractual provision, policy or an implied obligation to do so or the reason for not doing is discriminatory. When an employer does give a reference, it must be true, accurate and fair. This means that you need to be able to support the facts stated in the reference by way of verifiable data and the reference must not be misleading. To be fair, consideration must be given to the overall balance of the reference and any opinion contained within it.

Most employers understand that if they give a reference where they have been asked about disciplinary action during employment, they should provide this information otherwise the reference could be said to be misleading.

What do you do then when you are aware of disciplinary allegations but have not come to a conclusion as to whether they are well-founded?

The recent case in the Court of Appeal of Jackson v Liverpool City Council highlights this particular situation and provides some useful guidance for employers.

Mr Jackson was a social worker with Liverpool Council and subsequently joined Sefton Borough Council. The original reference from Liverpool was fine. Mr Jackson then sought another post within Sefton Borough Council, requiring a further reference. By this time, however, it had come to light that there were concerns about Mr Jackson's recording and record keeping procedures (a real issue in a sensitive role such as his) such that a disciplinary process might have been started if he were still employed by them. Liverpool Council formed the view that it could not properly investigate the allegations as Mr Jackson had left and so took no further action.

On the second reference, Liverpool Council explained these allegations but was clear to make the point that they had not carried out an investigation. This was subsequently confirmed in a telephone conversation between the two councils. As a result Sefton Council declined to offer the job to Mr Jackson and Mr Jackson brought a claim against Liverpool Council. Mr Jackson claimed that the reference was unfair because the allegations had not been investigated before the reference was provided. As a result, Mr Jackson claimed he had been without work for over 12 months.

The High Court initially agreed with Mr Jackson. The Court of Appeal allowed Liverpool Council's appeal and found that the reference was truthful, accurate and fair because it gone to some length to make it clear to Sefton Council that the allegations had not been investigated.

This case is helpful to employers in demonstrating that you can provide this sort of information fairly. However care still needs to be taken when the situation arises, and when giving references generally. To try to avoid these problems, some employers have chosen to adopt a policy of providing only very basic factual information (start and end dates, job title and duties) and give a disclaimer about relying on the information provided.

For further information and advice, contact our specialist employment law team on 01392 207020 or email This e-mail address is being protected from spambots. You need JavaScript enabled to view it .