The recent High Court case of Hincks v Sense Network Ltd [2018] EWHC 533 (QB) has brought employment references into the spotlight.

Although it is a common misconception that it is a legal entitlement, in the absence of an express agreement (for example in an Employment Contract or Settlement Agreement) there is no duty on an employer to give a job reference. Although most give references as a matter of course, employers are legally entitled to refuse provided it is not discriminatory to do so.

Despite the absence of a legal duty, the majority of employers give references. They expect them when hiring so it would not sit well if they were reluctant to give them. When an employer choses to give one the law steps in and there is a duty that the reference is “fair, truthful and accurate”. Where it is not, it creates a potential liability to the prospective employer who receives the reference and to the individual about whom the reference is written.

The case of Hincks v Sense Network Ltd highlights that when they go into any level of detail, for example about performance, the standard of care expected of employers includes the following:

  • To conduct an objective and rigorous appraisal of facts and opinion, particularly negative opinion, whether those facts and opinions emerge from earlier investigations or otherwise;
  • To take reasonable care to be satisfied that the facts set out in the reference are accurate and true and that, where an opinion is expressed, there is a proper and legitimate basis for the opinion;
  • Where an opinion is derived from an earlier investigation, to take reasonable care in considering and reviewing the underlying material so that the reference writer is able to understand the basis for the opinion and be satisfied that there is a proper and legitimate basis for the opinion, and
  • To take reasonable care to ensure that the reference is fair in the sense of not being misleading either by reason of what is not included or by implication, nuance or innuendo.

In light of this it is not surprising that many employers have policies which simply provide for basic factual references. This might limit a reference to: Name; Start/End Date; Job Title; Disclaimer; THE END. There are some exceptions (for example the financial and education sectors) but provided they offer the same type of reference for all employees and there is no discrimination, employers are perfectly entitled to do this. Given the risk of litigation it is perhaps understandable why many employers offer to give and expect to receive only a basic factual reference.

 

For further assistance or advice about the topics raised in this blog please contact our Employment Law Department on 01924 387 110.


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