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Esther Smith

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Ask the Expert: Is it legal to have a dual reference policy?

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The question

How legal is it when providing references to only confirm dates, sickness and disciplinary information? Are there possible dangers in relation to indirect discrimination?
 
For example, an employee of ours had 59 days of sickness/five episodes, but her performance is way beyond the average, while another staff member has taken three days of sickness/one episode but their performance is poor.
 
A third also had disciplinary action taken against him but, in the main, is a very good employee, while others who have had no disciplinary action have been performing no better than OK.
 
So how accurate do these references need to be? Is it legal to have a dual reference policy, where you give an accurate picture of employees who performed well regardless of their sickness/disciplinary record, and just confirm dates of employment/sickness/disciplinary record for those who didn’t perform well?
 
 
The legal verdict
 
Esther Smith, a partner at Thomas Eggar
 
Generally speaking, most employers have no obligation to provide a reference. However if you do write one, you have a duty to both the recipient of that reference as well as the employee concerned to offer a true, fair and accurate one. 
 
This approach involves not creating a misleading picture of the employee, whether in a positive or negative sense! 
 
With any reference, it can be advisable to steer clear of detailing a staff member’s sickness record as it could give rise to allegations of discrimination if, for example, sickness absences were due to a disability.
 
However, so long as the information provided is fair and factual, and such information is provided for all employees on the same basis, it would be hard for any individual to substantiate an argument that you had discriminated against them by providing factual details of their attendance.
 
As mentioned, it is sensible to be consistent when providing references for workers in order to avoid arguments over whether the approach taken in relation to one employee was somehow discriminatory when compared to the approach taken with another. Therefore, a “dual” reference approach could be risky.
 
Esther Smith is a partner in Thomas Eggar‘s Employment Law Unit.
 
 
Martin Brewer, a partner at Mills & Reeve
 
In the absence of either an express or implied contractual obligation to provide a reference, there is no legal obligation on an employer to provide one for either an employee or ex-employee and they are entitled to refuse to do so.
 
However, failure to provide a reference due to one of the protected characteristics in the Equality Act 2010 would entitle a staff member to bring a claim for discrimination.
 
Furthermore, refusing to provide a reference because the employee has previously brought discrimination proceedings against you; has given evidence or information in connection with such proceedings; has made an allegation of unlawful discrimination or done anything else under or by reference to discrimination legislation, may result in a claim of victimisation.
 
Meanwhile, the law that applies if you agree to provide a reference is clear:
 
  • A referee must not provide a discriminatory reference
  • An untrue statement in a reference that disparages the reputation of a person may amount to defamation
  • An individual may have a claim for malicious falsehood against a referee if they can show that the reference contains untrue words that were published maliciously
  • A referee can be sued for negligence for giving an inaccurate reference.
 
It is in relation to the law of negligence where cases have to date set out the employer’s duty when providing a reference in some detail. In the leading case, the Court of Appeal said that an employer is under a duty of care to provide a reference that is true, accurate and fair and does not present facts so as to give a misleading impression overall.
 
True, accurate and fair
 
The notion of ‘presenting facts’ includes omitting to say something material. But the duty of care is owed both to the subject of the reference and the potential employer asking for it.
 
To return to your general point, providing limited information in a reference (which is quite a common practice) is acceptable only if that limited information is true, accurate and fair and does not give a misleading impression to the reader about the employee in question.
 
Examples are not necessarily of use other than being indicative of the problem. An employer who only gives a limited reference advantages the weak employee, who nevertheless has a good attendance record and has not been in trouble.
 
But it does not necessarily disadvantage the excellent employee who has a similar level of attendance/conduct because the recruitment process involves more than simply what is written in a reference. In such cases, it is unlikely that the reference will make a difference.
 
In reality, the issue is only really problematic when you have a poorly performing employee, or one with a bad disciplinary record, and you provide a reference which, for instance, just confirms dates of employment and the role undertaken.
 
The recipient of the reference – the potential employer – is entitled to conclude that, if you have not highlighted performance or conduct concerns, there must be none. But if that situation is misleading, you may well have breached your duty of care towards that potential employer.
 
Martin Brewer is a partner at Mills & Reeve LLP.
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