References – what should or should not be said about ex-employees?
It is an established principle that if you provide a bad reference that you can’t substantiate, you run the risk of the employee suing you for damages if he suffers financial loss as a result of it. Likewise the new employer could also claim damages against you if you give a glowing reference for an unsatisfactory employee who goes on to perform badly in their new job.
It would appear that in McKie v Swindon College the Queens Bench Division has extended that principle. It held that an employer may be liable to a former employee for negligent statements about the employee to a future employer even where those comments do not amount to a reference.
The claimant was an exemplary employee of the College. He received a fine reference when he left. He later joined Bath University. His new job involved contact with his old employer, Swindon College. The new HR Director of Swindon, on behalf of the College, caused an email about Mr McKie to be sent to Bath in damaging terms. On the facts this was “fallacious and untrue” and its preparation “sloppy and slapdash”. It cost Mr McKie his job at Bath.
The Court held that the previous employer had a duty of care where the damage caused by the statement was foreseeable, the relationship between the person who made the statement and employee was sufficiently proximate, the claim fair, just and reasonable and there was a causal connection between the negligence in and about the statement and the damage claimed.
There is no general obligation on an employer to give a character reference to a former employee but if you do decide to provide one the options are as follows:-
- A factual reference: This would contain the position(s) held by the employee, salary and other benefits, sickness record and commencement and termination dates. You should also state that it is your policy to produce such a reference, so that the new employer does not read anything into the lack of additional information.
- A full reference and disclaimer: This would also include the facts as stated above, along with key responsibilities, an assessment of the employee’s performance, views on their personal qualities relevant to the position held and reasons for leaving.
If you opt for a full reference, you have a duty to ensure it is true, accurate and fair and that it is not misleading, this duty is owed both to the employee and the new employer. If an employee has been dismissed, ensure that the statements made in the reference tally with the reasons given for the dismissal and are balanced with any good points.
Another matter to consider is whether to include a disclaimer excluding liability for the accuracy of the reference; however they are of limited effect as they will protect you only if they are reasonable. That said you may wish to include a disclaimer in your references as a ‘belt and braces’ measure.
For further advice and information on references, please contact one of our employment specialists by email at: firstname.lastname@example.org.