The
challenge: A company has been asked to
supply a reference for an employee who was dismissed for gross misconduct
following a refusal to carry out her work, she alleged that a male colleague
had been leering at her all the time. The allegation was investigated but no
evidence of sexual harassment was found. This was 12 months ago. Sue Nickson
weighs up the issues
Legal Issues
–
There is no legal obligation for the company to provide a reference. It is only
in industries where the rules of the regulating body – such as Lautro – impose
a specific duty to provide a reference that employers have anything but a moral
duty.
–
Quite apart from any moral issue here, the company will have to give due
consideration to the request for a reference, as there may be a risk of a claim
under the Sex Discrimination Act 1975.
Normally,
an employee cannot make a claim of discrimination once the employment contract
has come to an end, unless the employer refuses to give a reference because the
employee has made a complaint of sex discrimination.
In
Coote v Granada Hospitality, 1999, ICR 942, it was held that the employer can
be found to have victimised the employee contrary to section 4 of the Sex
Discrimination Act 1975. In that case, the sum of agreed compensation amounted
to £195,000 due in a large part to the continuous loss of earnings.
The
employee here has previously claimed she has been subjected to sexual
harassment, so she could claim that this was the reason why the company did not
comply with the request.
–
If the company decides to provide a reference, it has a duty of care to ensure
that the information provided is accurate or it could face claims of damages
for negligence.
In
the case of Spring v Guardian Assurance, 1994, IRLR 460, it was held that an
employer who gives a reference in respect of a former employee owes a duty to
take reasonable care in its preparation, and will be liable in negligence if he
fails to do so and the employee suffers damage as a result.
–
The duty that the company owes does not extend to giving a "full and
comprehensive reference". In the case of Bartholomew v London Borough of
Hackney, 1999, IRLR 246, the employer was found not to be in breach of the duty
of care when it provided a reference which referred to the fact that, at the
time, the employee left he had been suspended pending disciplinary action. It
was held that the employer is under a duty to provide a reference that is in
substance true, accurate and fair and that the reference must not give an
unfair or misleading impression.
–
The company will also have a duty to the potential employer to take reasonable
care that a reference contains no inaccurate statements. If the reference gives
the new employer expectations that the employee cannot meet, and he suffers
loss as a result, there may be a claim against the company.
–
The right of access under the Data Protection Act 1998 (DPA) applies to
personal data but references are excluded. However, this exclusion does not
effect the employee’s right of access to the reference from the recipient,
provided that the identity of the author can be protected or the author waives
the right not to be identified.
HR Issues
–
The company should have a policy in place that stipulates who is to deal with
reference requests and ensures all references are checked by an appropriate
person before sending.
–
The company should consider contacting the ex-employee to advise her that a
reference request has been received. It may be necessary to discuss what
information is being asked for by the prospective employer. If this relates to
sensitive information, such as details of health records, it will be necessary
to get the express consent of the employee before disclosing the information.
Otherwise there may be a breach of the disclosure rules contained in the DPA.
–
While there is no right for the employee to have a copy of the reference, it
may be worth discussing the content of the reference, particularly in view of
her dismissal, as this information will be revealed to the prospective
employer.
–
The responsible person should ensure that the reference contains no inaccurate
information and ensure that when considering the individual comments or
statements as a whole, the picture given is not a detrimental one.
–
The company’s aim should be to provide a balanced overview of the employee,
taking into account the fact that it is not necessary to provide a full and
comprehensive reference.
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–
It should also ensure that the expectations of the new employer are not going
to be raised unrealistically.
By Sue Nickson,
partner and national head of employment law at Hammond Suddards Edge
