Care needed when providing references

TSB v Harris, IRLR March 2000, EAT

Employers must exercise reasonable care in preparing references and must ensure they are accurate as well as fair in the overall impression it creates.

After receiving a final written warning, Harris looked for alternative employment. She was offered a job with Prudential notwithstanding her disciplinary record.

TSB gave a reference. It contained no assessment of Harris’s ability or character but stated 17 complaints had been made against her, most of which were still being investigated.

Prudential’s offer was withdrawn. TSB had informed Harris of only two complaints and she had never been given the chance to respond to the others. She resigned and successfully claimed constructive dismissal.

The tribunal held that TSB was in fundamental breach of the implied term of mutual trust and confidence in providing a reference which mentioned complaints not drawn to Harris’s attention and which were misleading and potentially destructive of her career.

While the reference was accurate it was not fair. The EAT upheld the tribunal’s decision.


Objections to business transfers


University of Oxford v Humphreys and Associated Examining Board, IRLB 635, CA

Regulation 5(4) of Tupe enables staff to object to working for the proposed transferee but there is no deemed dismissal. Regulation 5(5) enables staff to resign and claim constructive dismissal if the transfer results in substantial and detrimental changes to working conditions.

Humphreys objected to the university’s proposed transfer of his contract to AEB because it would result in substantial changes to his detriment. The transfer went ahead and Humphreys resigned, bringing a claim for damages in the High Court.

The university applied, and failed, to have the claim struck out, relying on regulation 5(4) and arguing that liability passed to AEB on the transfer. The Court of Appeal held that the reason for Humphrey’s objection was the substantial and detrimental change to his working conditions rather than a particular objection to working for AEB. His objection prevented the transfer of his contract to AEB and without the transfer of the contract, liability did not transfer but remained with the university.

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