Only give “fair and accurate” references for ex-employees

A recent case has highlighted that businesses must be careful when providing references for ex-employees. If employers do not ensure a reference is fair, true and accurate they could be subject to a claim of negative misstatement by a former employee.

An employee was dismissed, following an investigation and disciplinary procedings and learned that a negative reference had been returned by his ex-employer. He asked to see a copy of the reference and then raised a claim for negligent misstatement arguing that parts of the reference were inaccurate and untrue, stating that it created a misleading idea of the disciplinary situation.

Whilst the court did not find in favour of the employee, it set out the following guidance:

• Conduct an objective and rigorous appraisal of facts and opinion, especially negative opinion, before providing a reference
• Take reasonable care to be satisfied that the facts set out in the reference are accurate and true and that, where an opinion is expressed, there is a proper and legitimate basis for the opinion;
• Take reasonable care to ensure that the reference is fair and is not misleading either by reason of what is not included or by “implication, nuance or innuendo”.