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Nothing nice to say, say nothing at all: employer references

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By Will Macauley

In March, the High Court considered the existing law relating to negative opinions in employer references in Hincks v Sense Network

An obligation to give a reference?

Though it is uncommon for an employer to be unwilling to give any reference at all, there is no obligation at law to provide ex-employees with a reference. Giving a reference is not compulsory unless an obligation to give one is contained in the employee’s contract of employment. Further, an employer’s business may have a reference policy which, though not contractual, allows its employees the expectation of a reference. An agreed reference and referencing procedure is also very common fare in settlement agreements.

Tombstone or opinion?

Where an employer must give a reference, or decides to do so, the next question is of content. The modern standard is a ‘tombstone’ reference, so called because it includes only the persons name, role and start and end dates. However, in certain areas such as education, it is standard practice to include a reference that evaluates an ex-employee’s performance and abilities. Likewise, an employer may decide that they feel so strongly and certainly enough about an employee that they feel that they wish to state their opinion. This is where Hincks can give some direction.

What happened in Hincks?

In Hincks v Sense Network, Mr Hincks was dismissed following his alleged breach of Sense’s regulatory procedures. Sense then gave a reference setting out their opinion as to his failings, causing him to lose out on a number of job roles. Mr Hincks brought a claim, contending that the opinions which Sense had included were not reasonably reached, having resulted from an improper disciplinary procedure. Mr Hincks’ claim was ultimately unsuccessful, as the court held that a reference writer is not obliged to look into the adequacy of the procedure which led to its opinions. The court did confirm, however, that there are broad standards which reference writers should uphold when giving an opinion, in particular:

  • the relevant facts should be reviewed objectively and rigorously;

  • reasonable care should be taken to ensure the truth and accuracy of facts forming a basis of an opinion;

  • reasonable care should be taken to understand investigations which have led to an opinion; and

  • the reference should be fair and not misleading, whether by omission, implication, nuance or innuendo.

So what should be said?

Though Mr Hincks was ultimately unsuccessful, there would plainly have been a benefit to Sense in avoiding a costly High Court trial. As such, it is often advisable to limit litigation risk by giving only a limited or tombstone reference. However, where an opinion is requested or is obliged to be given, an employer should carefully consider the facts that it makes use of, particularly where the opinion is negative.

If you have any questions about your referencing policy, or wish to seek further guidance, please do not hesitate to contact us.

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