The experts, Adam Partington and Esther Smith advise on whether a reference given should be updated to take account of a recent disciplinary hearing.
The question: providing a reference – what’s our duty to the employer?
About a week ago, we supplied a reference to a prospective employer of one of our employees. Our employee tells us she has been offered the job subject to a satisfactory CRB check.
She has now given us reason to hold a disciplinary hearing. I won’t go into detail, just that the alleged breach is serious, but not gross misconduct serious.
My question is, is there any obligation on our part to inform her likely future employer of the outcome of the meeting should it not go in her favour?
Adam Partington, solicitor, Speechly Bircham
The general rule is that an employer is under no duty to provide a reference for an employee. There are certain exceptions to this which I do not deal with here (for example where the individual works in financial services or there are discrimination issues). If an employer decides to provide a reference, it owes a duty of care to the recipient of that reference to ensure that the reference that is given is true, accurate and fair (Bartholomew v London Borough of Hackney  IRLR 246, CA). If this is not the case and the recipient suffers loss as a result, the employer may be held liable for negligent misstatement.
Whilst there is no duty on an employer to provide a reference that is full and comprehensive, an employer must take care to ensure that it is not selective about the information included in the reference. This is because the employer could be held liable by the recipient for giving a misleading impression through the omission of material facts.
It was established in Spring v Guardian Assurance  ICR 596 that an employer also owes a duty of care to the employee who is the subject of the reference, to ensure that the reference given is accurate and fair. To defend against claims for negligence by the employee, any unfavourable statements made in a reference should be confined to those matters in relation to which the employer has made a full investigation. The employer must be able to justify having a genuine and reasonable belief in any misconduct committed by the employee.
In the above situation, where you have already provided a reference, which I take it was true and accurate at the time you provided it, and have only afterwards discovered possible misconduct by the employee, there is a question as to whether you owe a continuing duty to the recipient to disclose further information regarding the employee which has come to light.
To help decide what action to take it would be important to know the content of the reference you have already provided (e.g. was it a short, factual reference, or did it provide details of the employee’s disciplinary record etc?) and the nature of the alleged misconduct, and what steps you have taken to investigate and deal with it. If in light of this you decide to provide the further reference so that the new employer has the full picture, you would need to tread carefully in terms of your relationship with the employee and any potential exposure when you consider how such a reference was worded. It would therefore be important for you to obtain tailored legal advice in this regard.
Esther Smith, partner, Thomas Eggar
When giving a reference an employer owes a duty of care to both the recipient and the subject of the reference. This means that any reference you give must be fair and factual and not misleading.
With this situation, I doubt that the original reference commented on the fact that this employee had a clean disciplinary record, but if it did then you would be expected to correct this given the recent incidents that have come to light. However you need to be careful what you say and make sure that it is not misleading – it appears that you have not invited this employee to a disciplinary hearing and no penalty has yet been imposed on her, so any commentary you provide to the prospective employer must match this situation.
I anticipate that the reference given was much less detailed than this and simply confirmed dates of employment and job titled etc. In this case I don’t think you are under an obligation to provide details of this new information to the prospective employer. It would only apply I think if you had been specifically asked about disciplinary records and provided information that was contrary to what had previously been said.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.