Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+

Sexual harassmentLatest NewsDiscipline and grievancesEmployee references

Charity scandal: can employers inform others about misconduct?

by Ashleigh Webber 23 Feb 2018
by Ashleigh Webber 23 Feb 2018 Ray Tang/REX/Shutterstock
Ray Tang/REX/Shutterstock

Amid the misconduct scandal surrounding the charity sector, Oxfam and other charities suggest that better systems to inform other prospective employers about staff misconduct are needed. But lawyers warn employers to take care to avoid making defamatory comments about former staff in references.

Twenty two aid organisations have signed a letter apologising for their failings, stating they will “do everything in [their] power to prevent, detect and eradicate unacceptable behaviour”, including a review of their current referencing systems.

They said they would work with the Government “to ensure that we can overcome the legal and institutional barriers to rigorous background checks in the UK”.

In an internal investigation report from 2011 into allegations of sexual misconduct in Haiti, which the charity published this week, Oxfam said it needed better mechanisms for informing other organisations of behavioural issues with staff “to avoid recycling poor performers/problem staff”.

Before the report was published, it emerged that disgraced aid workers had been employed by other charities that had not been informed of the allegations of misconduct.

Giving employee references

Policy on giving references

Is an employer obliged to supply a reference?

Indeed, Save the Children allegedly helped former chief executive Justin Forsyth get a job at Unicef by providing a clean reference, despite him directing “inappropriate behaviour and comments” towards female staff. Forsyth has twice been subject to investigation because of his conduct.

Responding to the suggestion that other organisations should be made aware of behavioural issues when approached for a reference, Phil Allen, partner at Weightmans, says employers should be careful about referring to such matters unless in exceptional circumstances, or they could face a claim for negligent misstatement if the allegations prove untrue.

Negligent misstatement arises when one party makes inaccurate or false statements to another, when the person or organisation making the claim owes a duty of care to the other.

Allen tells Personnel Today: “The issue is usually particularly difficult where someone has left during a process, when the employer has not determined for itself that misconduct has occurred. It would certainly be inadvisable for any organisation to detail allegations in these circumstances, although not unheard of for one to do so.”

Gary Freer, head of the employment team at Bryan Cave, suggests employers have become more wary of providing references due to concerns about legal ramifications.

“Generally, there is no legal duty on an employer to provide a reference and employers have become more reluctant to do so, for fear of exposure to claims for damages for defamation and/or negligence by subjects and negligence by recipients. The data protection legislation has complicated matters even further,” he says.

Some employers choose to simply provide confirmation of a former employee’s start date, termination date and job title to avoid supplying inaccurate information, according to Martha McKinley, solicitor at Stephensons.

A reference which only mentions positive attributes and fails to address substantiated disciplinary action could be equally as damaging if the candidate in question goes on to damage the business of their new employer,” Martha McKinley, Stephensons

“The duty towards a former employee also extends beyond accuracy, as case law has established that a reference must give a fair overall impression. Somewhat unhelpfully, a precise definition of what is ‘fair’ is yet to be provided.

“However referring to allegations which have not been properly investigated or making statements which have no reasonable grounds and/or which have not been communicated to the employee are very likely to breach the duty of care,” McKinley says.

But, on the other side of the coin, a person’s new employer can also bring a claim of negligent misstatement if it suffers a loss as a result of misinformation provided by their former organisation. This could include not telling them about proven instances of misconduct.

McKinley explains: “For example, a reference which only mentions positive attributes and fails to address substantiated disciplinary action could be equally as damaging if the candidate in question goes on to damage the business of their new employer.

“Therefore to avoid a claim resulting from a detailed reference, an employer should ensure that it is drafted by an individual with knowledge of the referee and that, as far as possible, it is supported by objective and measurable records.”

The Information Commissioner’s Office (ICO) advises employers to have a policy on who can give references. An employer should only give a confidential reference about someone if they are sure the former employee wants them to.

The option is there to introduce similar requirements in the charity sector, particularly for posts which would provide opportunities for exploiting children or other vulnerable groups. This could add an extra layer of due diligence to supplement any requirements for safeguarding checks,” Gary Freer, Bryan Cave

“I think this is rarely observed,” Allen says, “but does mean that if an ex-employee says that they do not want information to be provided, the employer should not do so.”

The ICO’s employment practices code states that a reference about a worker from one party to another – usually a prospective employer – will generally involve the disclosure of personal data, which means that the information must be given in compliance with the Data Protection Act.

Freer explains that the rules around references in some sectors, such as financial services, do deviate from general practices. Under the Senior Managers and Certification Regime for the financial services industry, employers must ask for a full “warts and all” reference for senior employees. The charity sector could adopt a similar approach to safeguard against problem staff, he suggests.

Sign up to our weekly round-up of HR news and guidance

Receive the Personnel Today Direct e-newsletter every Wednesday

OptOut
This field is for validation purposes and should be left unchanged.

“The option is there to introduce similar requirements in the charity sector, particularly for posts which would provide opportunities for exploiting children or other vulnerable groups. This could add an extra layer of due diligence to supplement any requirements for safeguarding checks,” Freer adds.

As the aid organisations suggested in their letter, changing the law around background checks in the charity sector could increase protection for the very people they were set up to help.

Ashleigh Webber

Ashleigh is a former editor of OHW+ and former HR and wellbeing editor at Personnel Today. Ashleigh's areas of interest include employee health and wellbeing, equality and inclusion and skills development. She has hosted many webinars for Personnel Today, on topics including employee retention, financial wellbeing and menopause support.

previous post
GPs see 13.5% increase in fit notes for mental health issues
next post
Skills-based volunteering can boost employee engagement

You may also like

NHS England implements fit and proper persons’ tests...

29 Sep 2023

Could rescreening employees help to fight ‘digital assassins’?

22 Dec 2022

Top 10 HR questions December 2021: NHS Covid...

4 Jan 2022

Ten years of the Equality Act 2010: key...

1 Oct 2020

Government considering making employee references mandatory

29 Oct 2019

How to avoid risk when providing employer references

7 Oct 2019

Top 10 HR questions July 2019: Spent convictions

5 Aug 2019

Top 10 HR questions May 2019: Ramadan, redundancy...

5 Jun 2019

Top 10 HR questions February 2019: Redundancy, FTCs...

1 Mar 2019

Top 10 HR questions September 2018 – probation...

2 Oct 2018

  • 2025 Employee Communications Report PROMOTED | HR and leadership...Read more
  • The Majority of Employees Have Their Eyes on Their Next Move PROMOTED | A staggering 65%...Read more
  • Prioritising performance management: Strategies for success (webinar) WEBINAR | In today’s fast-paced...Read more
  • Self-Leadership: The Key to Successful Organisations PROMOTED | Eletive is helping businesses...Read more
  • Retaining Female Talent: Four Ways to Reduce Workplace Drop Out PROMOTED | International Women’s Day...Read more

Personnel Today Jobs
 

Search Jobs

PERSONNEL TODAY

About us
Contact us
Browse all HR topics
Email newsletters
Content feeds
Cookies policy
Privacy policy
Terms and conditions

JOBS

Personnel Today Jobs
Post a job
Why advertise with us?

EVENTS & PRODUCTS

The Personnel Today Awards
The RAD Awards
Employee Benefits
Forum for Expatriate Management
OHW+
Whatmedia

ADVERTISING & PR

Advertising opportunities
Features list 2025

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2025 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+