Making references ‘fair’ as well as true

If you provide reference about a former employee you have a duty to take reasonable care to ensure that the information you give is true, accurate and fair. Failure to do so could result in claims including defamation, malicious falsehood, negligent misstatement and/or discrimination.  The problem comes in determining what is ‘fair’ and recently some guidance has been given by the Court of Appeal.

The case concerned the inclusion in a reference of allegations about an employee’s work that had been raised after his period of employment ended, and which had consequently not been investigated.  Even though it was made clear in the reference that they were unsubstantiated allegations, the employee did not get the job and brought a claim for damages against his previous employer.

The court found that the reference was unfair and that the allegations should have been investigated or no reference given.  However, on appeal, this was overturned because investigation would have raised great legal and practical difficulties, and refusing a reference could have led to adverse inferences being drawn.  The judge found that the question ‘would you employ the employee again?’ could not have been answered without mentioning concern about the allegations and that, since it had been made clear that they had  not been investigated, the reference had been careful and fair.

What should be done?

When issues over performance or conduct come to light after an employee has left, you may be able to show that it was not practicable to investigate the concerns.  You may then disclose the issues in response to a reference request as long as you make it clear that they have not been investigated and so you are unable to comment on their accuracy.