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What is a reference allowed to say about disciplinary issues?
[ch 15: page 84]Employees sometimes decide to resign during a disciplinary investigation. It is important to consider the potential effect on any reference. Where a person resigns during a disciplinary investigation, an employer can still refer in the reference to the fact that an investigation was started, as long as the reference also makes clear the stage that was reached, for example by stating that the employee left before any findings could be made, or before the disciplinary hearing took place. Alternatively, the employer could decide to refuse all reference requests.
A reference should not include information about complaints that were known about by the employer but not drawn to the employee’s attention before they left their job (TSB v Harris [2000] IRLR 157). However, where concerns do not surface until after someone has left, the ex-employer can legitimately refer to those concerns in a reference, as long as the reference makes it clear that they were not investigated. There is no duty to follow up concerns with the ex-employee before referring to them in the reference:
Mr Jackson, a social worker, left Liverpool City Council (LCC) to join Sefton Borough Council (SBC). After he left LCC, concerns were raised about aspects of his work. The concerns were not investigated, as Jackson was no longer employed by LCC. However, when asked to give a reference to SBC, his former manager left blank the question “Would you re-employ him?”, and when asked to identify any weaknesses, she referred to “record keeping” issues that were not investigated but would have led to a “formal improvement plan” if Jackson had stayed on. More detail was provided by phone, again pointing out that no investigation had taken place.
The Court of Appeal ruled that LCC could not be criticised for providing the reference in these terms. It owed a duty to use “reasonable care and skill” to make sure the reference was accurate, but this duty did not extend to carrying out a formal investigation of the allegations made about Jackson’s performance after he had left, or to raising them with him before giving the reference, as long as the person writing the reference made it clear that these were only allegations which had not been investigated.
The alternative would have been for LCC to refuse to provide any reference at all, or to suggest that the new employer direct its inquiries to the employee himself, neither of which would have been any more helpful to Jackson.
Jackson v Liverpool City Council [2011] EWCA Civ 1068