Employers who are asked to give references for former employees can sometimes find themselves in a difficult position if there were issues with the employee while he or she was still employed. On the one hand, the employer does not want to decrease the employee’s chances of being offered a new job and face legal action but on the other, the employer must ensure that the reference is accurate and does not misrepresent the facts.
The issue was raised in the High Court recently. In a case involving a Mr Thour and The Royal Free Hampstead, an inaccurate reference provided to Mr Thour’s prospective employer resulted in a job offer made to Mr Thour subject to references, being withdrawn.
The prospective employer had asked Mr Thour’s former manager in a questionnaire whether or not he’d consider re-engaging him. The former manager answered that he would not consider re-engagement because Mr Thour had resigned during an investigation into alleged aggressive behaviour. In reality the investigation had been concluded and Mr Thour had received a formal warning before he resigned.
The manager did try to rectify the mistake when he realised the inaccuracy but a libel action by the Mr Thour was brought anyway. The Court found that the manager had made the mistake without intention of “malice” and decided, based on the evidence, that it was in the interests of employers to give one another a more beneficial and correct view of an individual. Though what was included in the reference was inaccurate, the sentiment was honest and fair.
Employers will be relieved to hear that the case of libel (defamation in Scotland) was dismissed. However, it does show that employers should take a cautious approach to references. Employers may want to put in place a policy about how references are to be handled and ensure it’s followed. It may be safest to give factual reference stating the dates of employment and job title only, and state it’s the policy only to give such references.
For advice in relation to references or any other aspect of employment law, please get in touch. In the meantime, I’d like to thank our work experience student Lewis Johnston-Watt for assisting with this blog.
Head of Employment
0131 226 8216