Employee References - how honest should you be?

Jackson v Liverpool City Council

Mr Jackson left the Council’s employment in 2007 to take up a position in Sefton Borough Council’s adult services department.  In 2008, Mr Jackson applied for a position in the child services department within Sefton Council.  As this role was dependant on satisfactory references, Mr Jackson approached Ms Griffiths of Liverpool City Council.  Owing to certain concerns that had arisen after Mr Jackson had left employment, specifically in connection with his recordkeeping, Ms Griffiths explained she was unable to confirm or deny whether she would employ Mr Jackson again.   Her rationale for this indecisive response was because the allegations against Mr Jackson had not been investigated formally. Mr Jackson was unsuccessful in his application and he therefore decided to pursue a claim for damages in the County Court.

The County Court decided that although the reference was true and accurate, it was unfair because it contained an implication that Mr Jackson was unsuitable for the role. 

Interestingly, however, the Court of Appeal overturned this decision.  It decided that had Liverpool City Council failed to provide any reference whatsoever, a prospective employer could have made inferences which may have been far worse than the information disclosed by Ms Griffiths.  In addition, Ms Griffiths had stipulated that, had the allegations been thoroughly investigated, Mr Jackson would have been subject to a performance improvement plan rather than undergoing more formal disciplinary action.  This led the Court of Appeal to conclude that Ms Griffiths “did not raise any specific allegations against him, nor did she allege that any investigation had been undertaken or that he was guilty of the allegations or concerns.”

Therefore, it is important to note that if an employee leaves employment and questions remain over his/her professional performance, those issues should be disclosed accurately and thoroughly.  However, the most risk-averse course of action is – if possible – to agree the wording of a reference with the former employee.