Why references must be fair and accurate

Two new rulings help guide employers as to what is legally acceptable when
asked to provide a reference

In recent years, employers have become increasingly aware of the minefield
which can be the writing of references. We now have two more cases which serve
to fuel that caution.

The first is TSB v Harris, in which TSB gave a reference for an existing
employee to a prospective new employer, the Prudential. TSB confined itself
merely to factual statements, including that 17 complaints had been made
against Harris by customers. Unsurprisingly, the Prudential withdrew the job
offer.

The problem for TSB was that Harris had only been told of two of the
complaints and had had no chance to comment on them. When Harris found out
about the surprise contents of the reference, she resigned and brought a claim
of unfair constructive dismissal.

The Employment Appeal Tribunal confirmed that TSB was in fundamental breach
of the implied terms of trust and confidence with Harris, by revealing in the
reference complaints about Harris of which she herself was unaware. This had
had the effect of blocking her career in the financial services sector. It made
no difference that TSB was obliged to reveal the complaints made about Harris
under regulations governing the financial services sector.

Even though the reference was accurate, it was not fair and reasonable
because Harris had not known about the complaints. Harris’ constructive
dismissal complaint was upheld.

Request refused

The second case is Chief Constable of West Yorkshire Police v Khan. Khan had
complained to a tribunal that his employer had discriminated against him on
racial grounds over a promotion. While the case was proceeding, Khan applied
for a position in another force which applied to the West Yorkshire Police for
a reference.

West Yorkshire responded that, in the light of Khan’s tribunal application,
it could not comment for fear of prejudicing its own case. It refused a request
to provide copies of Khan’s last two appraisals and a personnel computer
printout.

This prompted Khan to further claim against West Yorkshire that it had
victimised him in the way in which it had responded to the reference request
because he had brought a race discrimination claim.

The tribunal dismissed Khan’s original claim of race discrimination, but
upheld his victimisation claim, awarding Khan £1,500 for injury to feelings.
The Court of Appeal upheld this decision.

Both cases involved claimants who were still employed by the
reference-giver. Care is also needed for former employees.

The House of Lords decision in Spring v Guardian Assurance confirmed that past
employers have a duty of care to act reasonably and with care when drawing up a
reference or the former employee could have a claim for damages in respect of
the new position which he failed to secure.

Gap in UK law protection

The position for victimisation claims is less clear-cut. There is a gap in
UK law protection for former employees who are refused references because they
have brought sex or race discrimination claims.

The ECJ in Coote v Granada Hospitality stated that the protection must be
extended to former employees who have brought sex discrimination claims, but
there is no current legal authority that former employees deprived of a
reference because they have brought a race discrimination claim should also be
protected.

Jill Kelly is an associate with Tunbridge Wells law firm, Thomson Snell
& Passmore

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