REFERENCES - 21.10.2011

New Court of Appeal guidance on references

Reference requests

In a recent case - Jackson v Liverpool City Council 2011 - the Court of Appeal was asked to look at the contents of a reference given about a former employee and decide whether or not they were unfair. Mr Jackson (J) previously worked for Liverpool City Council (LCC) for twelve years in its youth offending team. He had resigned to work for another employer, Sefton Borough Council (SBC). During that recruitment process it requested a reference from LCC which on receipt it deemed “satisfactory”.

Second one needed

One year into that role, J applied for another job with SBC; this time in its youth offending team. His application required references from former employers so SBC made a further request to LCC. It specifically asked the following two questions:

1. “Would you re-employ him?”
2. “Do you know of any reasons why we should not employ him?”

A “concerning” reply

In its response, LCC stated that: (1) after J had secured the first job with SBC, “issues in relation to his work whilst at LCC had come to light but they had never been investigated”; and (2) it could not answer the two questions asked in either a positive or negative manner.

Reasons. LCC also explained why it had decided not to investigate the issues - this was because J was no longer an employee and doing so would involve “legal and practical difficulties”.

Not giving you the job

This response raised concerns with SBC; J didn’t get the job and he was then unemployed for a year. He decided to bring a claim for damages against LCC for its “negligent reference”. The case has recently been before the Court of Appeal which concluded that J had no case as the second reference was “true, accurate and fair”. So what were the reasons behind this decision?

It was all explained

The key to LCC’s success was that it had fully explained its reasons for not investigating the matter and they were perfectly valid. It had also made it clear that whilst the allegations had not been looked into formally, had they been upheld it would have resulted in J being performance managed; in other words, there would have been no disciplinary action so no dismissal. These factors formed an integral part of the reference and were not damaging to J’s application.

Tip 1. This case confirms that “unsubstantiated” concerns over a former employee’s conduct may be disclosed to a third party in a reference. However, this must be done in a measured and unprejudiced way and a full explanation given as to why they’ve not been formally investigated.

Tip 2. However, the fact remains that you’re still under no duty to provide a reference. Therefore, if you’re unsure about it or the questions asked, it’s safer to decline citing “company policy.”

For a free sample letter declining a reference, visit http://personnel.indicator.co.uk(PS 13.19.03).