REFERENCES & VICTIMISATION
In general there is currently no legal obligation to give a reference, except where there is a mandatory requirement e.g. the financial services sector. However, anyone who gives a reference has a duty of care to both the recipient of the reference and the person who is the subject of it. The reference given must be accurate and must not be misleading or defamatory. The safest reference is a purely factual one. If you choose to offer opinions in a reference they must be based on an accurate assessment of the facts.
If the duty of care is breached then negligence may have occurred. If this causes either the recipient or the subject to suffer damage, then the referee can be sued for damages.
Furthermore, caution should be exercised if the subject of the reference has previously raised a Tribunal claim.
This is what happened in a recent case where a Solicitor had raised a sex discrimination claim against her employer (“first employer”). The Solicitor found new employment but was subsequently made redundant. The Solicitor then asked the first employer for a reference. The first employer provided a reference to the prospective employer and referred to the original tribunal claim and also to the solicitor "being inflexible as to her opinions". The prospective employer, following some discussions with the Solicitor, withdrew the offer of employment that had by then been made.
The Employment Tribunal decided that the Reference was an act of Victimisation holding that the way the reference was written was because the Solicitor had brought proceedings of alleged discrimination. Both the first employer (for supplying the reference) and the prospective employer (for withdrawing the job offer) were held to have victimised the Solicitor as a result of her having performed a protected act. The prospective employer settled the claim (reportedly for £42,500) prior to a remedies hearing. The Tribunal made an award of compensation of £7,500 for injury to feelings against the first employer.
EMPLOYMENT APPEAL TRIBUNAL
However, at Appeal it was additionally held that the provider of a discriminatory reference can also be liable for loss of earnings if the recipient (prospective employer) also victimises a Claimant (in this case by withdrawing the job offer). Consequently, the case has now been remitted back to the Tribunal to determine the level of additional compensation to be awarded to reflect the loss of earnings.
POINT TO NOTE
The message to employers is – be very careful when responding to reference requests. We have many years experience in handling reference requests and if you have any doubts about what you can and cannot say please call us for advice.