When asked for a reference, what should an employer do when new allegations about an ex-employee come to light after they have left?
As outlined in our previous article, an employer owes a duty of care to an ex-employee when giving a reference to a prospective new employer and must exercise reasonable care and skill to ensure the accuracy of any such reference. The employer can be held liable for any economic loss suffered by the ex-employee if the reference given is not true, accurate and fair or gives a misleading impression.
However, in Jackson v Liverpool City Council the Court of Appeal had to consider what an employer should do when new allegations about an ex-employee come to light after he has left.
Mr Jackson was employed as a social worker by Liverpool City Council. After he had left concerns were raised about his work but these concerns were not investigated. When asked to provide a reference for Mr Jackson by a prospective new employer, the Council referred to the concerns that had been raised but stressed that that these concerns had not been investigated and so they were unable to answer some questions on the reference, “in either a positive or negative manner”.
The Court of Appeal held that the Council had been right to refer to the concerns and, as the Council had made it clear that the concerns had not been investigated and that no assumptions could be made, the reference could not be considered to be unfair.
It is clear, therefore, that where issues about an ex-employee come to light after they have left, the employer should disclose such issues accurately to any prospective employer. If, however, such allegations were not investigated, the employer should make this absolutely clear so that no assumptions can be made.
For further advice about how to avoid incurring liability when giving references please contact one of our employment specialists by email at: firstname.lastname@example.org.