Opinion

Reluctant referee

Governance | Jesper Christensen | 1 May 2007

Jesper Christensen responds to a chair of trustees trying to write a reference and facing a dilemma over the potential consequences of putting the charity's interests before that of the employees.

Dear editor,

Our chief executive is applying for posts elsewhere. Although once reasonably good, she is now well past her sell-by-date and the charity would benefit greatly if she moved on. She has asked me as chair of trustees to be a referee for her and I have agreed as I assumed the charity has a legal responsibility to provide a reference. However, this leaves me with a dilemma. It seems to me that I have three options but I'm worried about the potential consequences of each:

    * I give her a brilliant reference that she doesn't deserve in the hope that she is appointed and becomes another charity's problem;
    * I give an honest reference and we remain stuck with her until she retires in five years time, which the trustees feel strongly is not in the best interests of the charity; or
    * I write a reference giving only as much good news as I honestly can about her and suggest that potential employers phone me. With any luck they won't phone.

I am also concerned about the possible legal implications of all of these options. What does the law say about references, written and oral, and how do I obey the law and act in the interests of the charity at the same time?

Yours sincerely,

A chair of trustees trying to write a reference

Dear chair of trustees,

The possible repercussions from the contents of a written reference are often not always a prominent concern for employers at the time they are provided. However, the contents of a reference need to be considered as seriously as the contents of any other employment document as the wording of a reference can trigger a battle on one of two fronts: either that brought by the former employee about whom the reference was provided; or, alternatively, by an unimpressed future employer who is the recipient of the reference.

An employer is not obliged to provide a reference but should refuse rarely. If a request for a reference is rejected, then the employer may attempt to argue that it is the employer's custom and practice to do so. An employee who is refused a reference after they made a claim for discrimination or some other protected act may have a claim for victimisation.

The leading case on an employer's liability arising from the wording of a reference is Spring v Guardian Assurance Plc, which established that an employer owes a duty to an employee to take reasonable care in preparing the reference and that the employer is liable in negligence should the employee suffer damage by the employer's failure to do so.

There is no requirement that a reference be overly detailed or comprehensive. However, the primary requirements to bear in mind when constructing a reference are that a reference must be in substance true, accurate and fair and must not give a misleading impression.

References may also become relevant in Employment Tribunal proceedings. A positive reference may be used as evidence against an employer who defends a claim for unfair dismissal due to misconduct or poor performance.

It is not only what is said in a reference that may give rise to an employer's liability but also what is not, as an omission of information can be as bad as a reference which states incorrect information.

For example, where an employee's departure is in some part due to disciplinary proceedings which are underway or completed, then a failure to mention such disciplinary proceedings in the reference might find the employer in breach of its duty of care to the party seeking to rely on the reference, usually a new or potential new employer. This can apply to the omission of any crucial information regarding the employee performance and conduct which it is clear would be very important for a future employer.

A reference provided in response to a general enquiry by a prospective employer should ideally deal briefly with the employee's length of service, positions held, competence, honesty and time-keeping, reason for leaving and any other relevant comments, such as long periods of sickness absence or any other remarks of a more personal nature about the employee which may be relevant. 

Jesper Christensen is head of employment at Bircham Dyson Bell LLP

Tweet

Directory: Bircham Dyson Bell
Who's Who: Jesper Christensen