A recent ruling has clarified the extent of employers' duties when giving references about ex-employees
Employers are often unclear about the terms on which they are required to provide references for former employees.
About six years ago, in Spring v Guardian Assurance, 1994, IRLR 460, the House of Lords held that an employer owes a duty of care to an ex-employee when preparing a reference to ensure that its contents are true and accurate. An individual can sue for damages to compensate for the harm to their employment prospects caused by a negligent and inaccurate reference.
Last year, the Court of Appeal went even further, holding that the employer's duty is to provide a reference which is substantially true, accurate and fair. Even if the separate components of the reference are factually correct, it must not give an unfair or misleading impression (Bartholomew v London Borough of Hackney, 1999, IRLR 246).
Holding the line
Most recently, in Kidd v Axa Equity & Law Life Assurance Society and another, High Court, 27 January 2000, unreported, an unsuccessful attempt was made to push the boundaries of the referee's duty of care still further.
Much of the evidence in the case was hotly disputed and, to save time and costs, the court proceeded on the basis of an assumed set of facts. In essence, Kidd was an approved representative for Equity & Life, authorised to sell its financial products. He resigned, intending to join Allied Dunbar.
The references provided by Equity & Life were poor, referring to the fact that investigations were continuing into the conduct of Kidd's affairs with clients as a result of a number of complaints. Allied Dunbar decided not to proceed with the engagement of Kidd, and he filed for damages against both firms. The crux of his case against Equity & Life was that it had owed him a duty to provide a full, comprehensive and fair reference.
Mr Justice Burton encapsulated the legal obligation on a reference-provider as follows: " …a duty to take reasonable care …not to give misleading information …whether as a result of the unfairly selective provision of information, or by the inclusion of facts or opinions in such a manner as to give a false or mistaken inference in the mind of a reasonable recipient."
There is no additional duty, however, to give a full and comprehensive reference or to refer t