3. STARTING WORK AND THE EMPLOYMENT CONTRACT

References and employer checks

Most employers require a reference before they will employ someone. Young workers starting work for the first time are likely to have references from school or college, plus exam results. But from then on, job offers will generally depend on employer references.

An employer is not obliged to provide a reference, but if they do, they have a duty of care to make sure it is true, accurate, fair and not misleading. If it is not accurate because the employer has not taken proper care, the worker can bring a claim for negligence in the civil courts for resulting financial loss (Spring v Guardian Assurance [1994] IRLR 460).

An employer or ex-employer can also be liable in negligence if they volunteer unsolicited information to the new employer about a former employee without taking proper care. For example, in McKie v Swindon College [2011] EWHC 469, McKie’s ex-employer, Swindon College, was liable in negligence when an HR manager emailed his new employer, refusing him access to their premises because of “very real safeguarding concerns” and “serious staff relationship problems”. There was no factual basis for the accusations, which had not been investigated by the sender. They resulted in McKie losing his new job and his former employer was liable in negligence for his resulting losses.

It is unlikely to be fair and reasonable for a reference to include information about complaints against an employee that have not been brought to the employee’s attention (TSB Bank v Harris [2000] IRLR 157). In this case, Harris was still employed by the TSB but had applied for a job at the Prudential. The job was withdrawn when the TSB provided a reference containing complaints that had not been raised with Harris. This was a fundamental breach of the duty of mutual trust and confidence, entitling Harris to resign and claim constructive dismissal.

If the employee has already left their job by the time concerns are raised, an employer is likely to be able to refer to these concerns in a reference, as long as they act reasonably and spell out that the concerns have not been raised with the employee. For example, in Jackson v Liverpool City Council [2011] EWCA Civ 1068, Jackson had already left his job when performance concerns were raised. In the reference given to his prospective new employer, his line manager highlighted “record keeping” issues that were not formally investigated but that could, said the reference, have led to a formal “improvement plan” had Jackson stayed on. The line manager pointed out that no investigation had taken place. The Court of Appeal said that Jackson’s employer could not be criticised for providing this reference. Given that Jackson had already left, there was no duty to carry out a formal investigation of the allegations, or to raise them with him before giving the reference, as long as the reference made it clear that the allegations had not been investigated. The alternative for the employer would have been to refuse to give a reference at all.

A reference need not be comprehensive (Kidd v Axa Equity [2000] IRLR 301). Nor is there a legal obligation to provide a good reference. If a poor reference means that an individual does not obtain employment, there is no breach of the duty of care, provided the reference is true, accurate, fair and not misleading (Legal and General v Kirk [2001] EWCA Civ 1803).

Although employers are generally not obliged to provide a reference, they are likely to be breaking the law if they refuse because the worker has made a claim against them. This is victimisation and a breach of the EA 10 (see Chapter 6). In Jones v 3M Healthcare EAT/0714/00, the EAT held that disabled workers denied or given poor references by their ex-employers because they had previously brought discrimination claims were unlawfully victimised.

Refusing a reference because a worker has made a protected disclosure (whistleblowing) will be a detriment, giving rise to a potential claim under the Public Interest Disclosure Act 1998 (see page 292).

If an employer has made a job offer subject to a satisfactory reference, the contract will not take effect until this happens. Sometimes individuals start work before the reference arrives. Where this happens, the employer can lawfully end the employment contract if the reference does not materialise, or is unsatisfactory. It is up to the prospective employer whether a reference is satisfactory and the test is subjective (Wishart v NACAB [1990] IRLR 393). There is nothing to prevent an employer asking for references from people other than those the employee has nominated (Purvis v Luminar Leisure Ltd t/a Chicago Rock Cafe EAT/1332/99).

An unsatisfactory reference must be the real reason for ending the employment, not some other reason, such as the fact that the employee has asked for equal pay to that of her male colleague, as happened in Halai v Integrated Asian Advice Service UKEAT/0855/03.