Are you confused about employment references?
And your obligations as an employer, or rights as an employee?
We all know the value of a good work reference.
Because what you say about yourself is one thing; however, what your former employer says may well be more influential in you obtaining a new position.
Some common questions surrounding work related references are:
- Is the employer obliged to give one?
- Is he obliged to give a good one, or at least be less than complete in his assessment of your performance and abilities?
- Does the employer owe a legally enforceable obligation to anyone in relation to the reference?
- What is the status of the commonly used “statement of employment”?
Generally, it was widely accepted that an employer was not under an obligation to provide a reference. That position is no longer as black and white as it once was due to some decisions in case law in the UK in this area.
UK case law appears to now hold that there may be circumstances where there is an implied term in the contract of employment to provide a reference on leaving at the request of a future employer. This is not universally applicable but may apply in a situation where it is standard practice in a particular industry or in hiring a certain class of employee.
Once an employer does give a reference he has a duty of care to take care in compiling the reference and if the employer fails to do so and the employee suffers economically as a result the employee may have a case in negligence.
The leading case in this area is the UK House of Lords case, Spring v Guardian Insurance .
This case involved the insurance industry and there is a regulatory body in the UK, LAUTRO, which had a rule that required the provision of a reference to a prospective employer in respect of employees who wished to sell insurance products.
Even though there may not be a regulatory body in Ireland which prescriptively sets down rules that references are essential in its particular industry it is easy enough to see industries where the provision of references have become custom and practice. In this situation a term may be implied into the contract of employment that one will be provided to a prospective employer.
Duty of care
In a later UK case Bartholomew v Hackney London Borough and another  the duty of care to the employee was to provide a reference that was true, fair and accurate. However, it does not have to be full and comprehensive.
An employer also has a duty of care to future employers in respect of the reference provided, as it is clearly foreseeable that a future employer will rely on what is in the reference and is entitled to do so as the previous employer should know his departing employee sufficiently well.
UPDATE JUNE 2018
A recent UK High Court case, Hincks v Sense Network, gives further guidance in the area of references, specifically concerning defamation and negligent misstatement.
The details of the case are not as important as the fact that the reference provided was very detailed and gave information about the employee’s performance in the workplace, the necessity for the employer to compensate clients for losses incurred as a result of the employee’s actions, the employee’s suspension, and the fact that he had been placed on a rehabilitation programme.
The employee brought a claim for negligent misstatement on the basis that the employer had failed to discharge its duty of care to the employee.
The High Court dismissed his claim on the basis that all statements provided by the employer in the reference were supported by evidence-in short, the statements were true.
The High Court also gave some pointers as to how the employer will discharge his duty of care as follows:
- To conduct an objective appraisal of facts and opinions about the employee
- To ensure that any facts set out in the reference were true and any opinions were reasonably arrived at
- If an opinion arises from an earlier investigation to take reasonable care to see that there was a legitimate basis for the opinion
Many employers in Ireland do not now provide references, instead they give ‘statements of employment’ setting out the basic facts of the employee’s employment.
It is easy to see why many employers have now adopted this policy.
Remedies for the employee
An employee may have a number of remedies open to him in respect of the provision of a reference. These may include:
- Breach of contract
- European convention on human rights, 2003
- Constitutional right to earn a living
There is no absolute obligation to give a reference.
Nor is there an obligation, where one is given, that it be full and comprehensive.
But what is provided must be accurate and fair, and must not mislead.
And the provider of the reference has a duty of care to the employee and the prospective employer who will rely on it.