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References and discrimination claims

Author: Sarah Naylor

References can be a tricky thing for employers. Let’s start with a brief overview of the legal position on references:

  • A business isn’t legally required to provide a reference if asked, you can refuse to give one
  • If a reference is provided, it should be factually correct

The question often is how much information to put in a reference, and will it put your business at risk. As a result, most businesses will tend to only give brief factual information in a reference, giving employee name, job title and dates of employment. The risk of a reference being factually incorrect is that a business could be open to their former employee bringing legal claims against them.

If you are considering giving more detailed information than this in a reference, it should be done with care.

The recent Employment Tribunal case of Mr P Mefful v Citizens Advice Merton and Lambeth is an excellent illustration of the risks when giving references to prospective employers. The Tribunal found that an employee was discriminated against by their former employer after the reference they gave painted a misleading picture of his past sickness absence.

The case involved an employee who had taken two long periods of sickness absence during his employment with Citizens Advice. He was made redundant and brought a successful unfair dismissal claim against Citizens Advice. The employee was subsequently offered a new job with another employer, and that prospective employer requested a reference from Citizens Advice.

Citizens Advice gave a reference and included in it the following key details:

The employee’s sickness absences in detail
Responded “no” to the question of whether they would re-employ him
Failed to explain why they would not re-employ him and
Failed to answer any questions about his performance

The job offer was withdrawn on the basis of the reference as the prospective employer did not look favourably upon the sickness absences and they were influenced by the statement that Citizens Advice would not remploy him. As a result of this, the employee brought Employment Tribunal claims against Citizens Advice for victimisation and discrimination arising from a disability.

The Employment Tribunal agreed that the employee had been discriminated against for the following reasons:

  • The figures given in the reference for the sickness absences were in accurate and significantly overstated. The Tribunal also criticised the failure to explain the employee’s disability and the impact this had upon his absences.
  • The Tribunal considered that the reference was negative as a result of the claims he had brought against Citizens Advice when he was made redundant.  The Tribunal therefore found that the failure to answer some of the questions was purposely intended to reflect the employee in a bad light and to cause the prospective employer to view the employee negatively; and
  • The reference failed to provide a balances or fair picture of the employee’s time spent working for Citizens Advice

The case illustrates the importance of taking care when giving references, particularly in respect of leavers who may have alleged or brought claims against their former employer. Former employers sometimes find themselves in a difficult position when asked to provide a reference. They owe competing duties to both the former employee and the prospective employer and the consequences of providing a reference which is not fair, accurate and misleading can be costly.

Employers who choose to provide detailed references should always ensure they are fair, balanced and factually correct.

 

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