03 July 2014 #Employment
There are at least three legal duties for an employer to consider when providing a reference.
1. Reasonable care and skill must be taken to ensure that the reference provided is true, accurate, fair and not misleading. If an inaccurate reference is provided, which could include a standard reference, the referee may be sued for negligent misstatement (www.practicallaw.com/6-107-6878).
2. A duty of care is owed to the person who is the subject matter of the reference. It must take reasonable care when preparing a reference and if it does not, it may be liable for any damage suffered by the employee as a result of the reference.
3. Providing a reference will involve processing personal data, hence the data must be processed lawfully under the Data Protection Act (“DPA”). Under the DPA, the courts have the power to order an employer not to issue a reference that involves unlawful processing, if notice is served on the employer by the employee and it can be shown that the reference is likely to cause substantial damage or distress.
Then, in the public sector, the public law concept of legitimate expectations may apply, meaning that a public authority which has, by a promise or practice, conferred on a person a legitimate expectation of a procedural or substantive benefit may not frustrate that expectation if to do so would be so unfair as to amount to an abuse of power.
A recent case (AB v A Chief Constable) provides some useful guidance as to what happens when all these duties compete.
AB v A Chief Constable
In 2009, AB (a police officer) was disciplined for misconduct and given a final written warning. AB was absent on sick leave between December 2011 and June 2012. The police subsequently became concerned that AB was using his position to attempt to influence the appointment of a friend and commenced a disciplinary investigation.
In July 2012, during the disciplinary investigation, AB was offered a new position with a regulatory body, which was conditional on satisfactory references being provided. Therefore, the regulatory body emailed AB’s line manager specifically requesting information on the number of days AB had been absent in the last 12 months, his reason for leaving and any further comments relevant. After checking with HR, AB’s line manger replied using the standard template reference which confirmed AB’s job title, dates of employment and a disclaimer. Therefore, the reference did not give details of AB`s absence record and did not refer to the outstanding disciplinary matter.
AB was offered and accepted the job with the regulatory body and resigned from his existing position. He requested that, since he had now resigned, the disciplinary hearing, scheduled about to commence should not go ahead.
When the Deputy Chief Constable learned that a standard reference for AB had been provided, he considered this approach inappropriate. The police force wrote to AB stating that a further "corrected" response would be sent to the regulatory body and enclosed a copy of the proposed second reference. The second reference gave details of AB`s period of extended absence in the 12 months before his resignation and advised that his resignation was received shortly before a misconduct hearing against him was due to commence.
Legal proceedings resulted to determine whether the second reference could be sent. The Chief Constable contended that he had duties to the regulatory body and it was incumbent on him to rectify the fact that the first reference was incomplete and misleading. He considered that he was subject to more onerous duties than would normally be the case because of his role, the police force`s status as a public body, the regulatory body`s position as a public and regulatory body and AB`s position as a senior police officer.
The court held that the first reference was inadequate as it gave a misleading impression of AB. However, this, in itself, did not mean that the Chief Constable had a duty of care to provide a further reference. For a duty of care to arise when providing a reference, there must be an assumption of responsibility. In this case, the first reference contained a clear disclaimer and a reasonable recipient of the reference would take it to mean that the force`s policy was to only provide basic information and that the force disclaimed any assumption of responsibility in relation to the giving of the reference and the accuracy of the information provided in it. This meant that, read as a whole, the reference was not misleading.
In the court`s view, the Chief Constable was obliged by his statutory and public duty to act with honesty and integrity to not give a standard reference, as that was misleading. Therefore, it concluded that "the Chief Constable was prima facie under a duty to supply the regulatory body at least with the information about disciplinary matters in the second reference".
However, in the circumstances of the case, the Chief Constable was no longer free to send the second reference for the following reasons:
Under the DPA, the Chief Constable was under a duty to process data fairly and lawfully. When weighing up this duty, the court criticised AB`s manipulation of the situation and lack of integrity by failing to inform the regulatory body of his own accord of the disciplinary proceedings. The court also stated that there was a public interest in full and frank references. However, on balance the court found that it would not be fair processing of data to disclose the reference because: (i) it would be contrary to the force’s policy to only provide standard references; (ii) it would be breach the undertaking to AB to only provide a standard reference; and (iii) AB resigned from the police force and requested that it discontinue the disciplinary proceedings before he learned that the Chief Constable intended to send the second reference.
The Chief Constable was required to exercise his public law duties in accordance with public law principles, including the principle of protecting AB`s legitimate expectation that a standard reference would be provided. In this case, AB’s line manager had given an undertaking to AB that he would provide a standard reference to the regulatory body. This undertaking gave rise to a legitimate expectation and AB, relying on the undertaking, had then acted to his potential detriment by resigning both from his job and also withdrawn from the disciplinary proceedings.
Employers should include disclaimers when providing standard references, particularly where there are concerns as to the individual’s performance or disciplinary record. Standard references can be misleading and hence negligent, giving rise to potential claims against the employer.
Where full references are provided, careful regard should be had to the competing obligations to the employee and the recipient of the reference, as described above. In the public sector, further duties may apply.
Care should be taken when giving any undertaking to an employee to provide either a standard or a full reference and managers should be given clear guidance as to what to do when an exiting employee seeks a particular form of reference.