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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 come with references from school or college, plus examination results. But from then on, job offers will generally rely on employer references.
An employer has no obligation to provide a reference, but an employer that does provide one has 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 any resulting financial loss (Spring v Guardian Assurance [1994] IRLR 460).
In 2002, Robert McKie left his job at Swindon College with an excellent reference to join the City of Bath College. Some time later, he secured a new job at the University of Bath which involved him visiting the campus at Swindon College. Two weeks after McKie took up this new post, the Swindon human resources manager sent an unsolicited email to the University of Bath stating that they would not be willing to allow McKie onto their premises because of “very real safeguarding concerns” and “serious staff relationship problems” during his employment at Swindon. McKie, who was still within his probation period, was dismissed immediately. As he had no service, he could not bring a claim against his new employer. Instead, he brought a claim in the civil courts against Swindon College.
The judge found no factual basis for any of the claims made in the email. Worse still, its author had no personal knowledge of McKie’s employment while at Swindon and had made no attempt to investigate rumours reported to him before sending the email. The college’s decision to write about a former member of staff in this way triggered its liability in negligence. McKie suffered loss as a result of that decision and that loss was foreseeable. As a result, the college was liable under the law of negligence for those losses.
McKie v Swindon College [2011] EWHC 469
It is unlikely to be fair and reasonable for a reference to include information about complaints against an employee where these complaints have not been brought to the employee’s attention (TSB Bank v Harris [2000] IRLR 157). However, if the employee has already left their job by the time the concerns are raised, an employer may be able to refer to these concerns in a reference, as long as the reference spells out that they have not been investigated:
After Mr Jackson, a social worker, left Liverpool City Council (LCC) to join Sefton Borough Council (SBC), concerns were raised about aspects of his work at LCC. These concerns were not investigated as he had already left LCC. But when asked to give a reference to SBC, his old 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 that would have led to a “formal improvement plan” if Jackson had stayed on. Griffiths provided more detail by phone, again pointing out that no investigation had taken place.
The Court of Appeal held 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, or to raising them with Jackson before giving the reference, as long as the person giving the reference made it clear to the prospective new employer 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 should direct its inquiries to the employee himself, neither of which would have been any more helpful to Mr Jackson.
Jackson v Liverpool City Council [2011] EWCA Civ 1068
The reference does not need to be comprehensive (Kidd v Axa Equity [2000] IRLR 301). Nor is there a legal obligation on the employer 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 employer has ensured that the reference is true, accurate, fair and not misleading (Legal and General v Kirk [2001] EWCA Civ 1803 [2002] IRLR 124).
Although employers are generally not obliged to provide a reference, they may be breaking the law if they refuse to do so because the worker has made a claim against them. This may be victimisation (see Chapter 6). In Jones v 3M Healthcare (EAT/0714/00), the EAT held that three disabled workers denied or given poor references by their ex-employers because they had previously brought discrimination claims had been unlawfully victimised.
If an employer has made a job offer subject to a satisfactory reference being obtained, the contract will not take effect unless or until this happens. The prospective employer can decide whether the reference is satisfactory and the test is a subjective one (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).