hello on. Welcome to this weapon are in which we're going to look at the issue of giving references. When an employee is seeking to move to a new employer, we're going to look at what the obligation is on the employer, quite simply, is a requirement to give a reference a tool on. Then we're going to look at some issues concerning references, the need for them to be accurate, what to do if a reference is part of a settlement agreement on, finally, what sort of claims and employees could bring if they believe that the reference that has been given is wrong in some way. So let's start at the beginning and have a look at what the obligation is to give a reference. It could be said that there is no obligation on an employer to give a reference, and that is a commonly given statement. But it's not 100% true. There are, broadly speaking, three circumstances in which an employer must give a reference. The first is when there is a contractual obligation to give a reference. Now, this could be an express term in the contract of employment that is reasonably unusual But there are employees who in the termination section if the contract for employment do put there on the termination of employment, the employee will be given a reference. S a rare, but it does happen. If that's in your contracts of employment, you might just want to take a moment to think about whether you really want that. There it is putting an obligation on you to give a reference on. And if it's an express term stated in writing in the contract, you have no alternative but to give that reference. You might not want to be in that situation, of course, for your existing employees got that contractual obligation there. But for new employees, you might just want to have a think about whether that's really worth having there. However, what is more likely is that there is a contractual obligation through an implied term on imply term of the contract is just as valid as one that is referred to as an express term. So an express term is something that has been agreed between the two parties typically recorded in writing, although it doesn't have to be on imply. Term is something that has no necessarily been discussed. It all becomes from a source, such as the law, such as work rules, Andi, custom and practice. And if in your organization you routinely always give references to employees when they leave the organization, then it could be argued that there is an employee toe. The all employees will be given a reference now that employ term doesn't necessarily say whether we're talking over full reference or just a statement that confirms that the individual worked for you from particular dates in a particular job. But if you regularly always do, one of those two is going to be extremely difficult for you to argue that one individual you're not going to give a reference. Sir, we need to think about the express on the employee terms here. The other situation in which you might have to give a reference is when the employee is working in a profession or a sector where there is a regulatory requirement to give a reference. For example, in financial services, there is a obligation to give a reference when an employee newsroom moment, employer to another on. Of course, if you're in that situation, you have no alternative but to give the reference. The other situation is a settlement agreement. So this is when an employee is leaving your organization on. For whatever reason, you have decided that it would be appropriate to give the employees a payment in return for them. Not bringing claims against you on this is quite covered common in senior terminations when really there should be a process of going through disciplinary warnings before reaching a dismissal. But because of the seniority of the employees, it's felt inappropriate in some way On, therefore is decided to enter into a settlement agreement. Now is no unusual for a reference to be part off that agreement because, of course, the employees losing their employment Andi, they are likely to want to seek new employment. And they want the reassurance of what you're going to say about them isn't going to damage their employment prospects. We are going to look at one case relating to references and segment agreements in just a moment. But for now, suffice to say that if you do have an agreed reference as part off the settlement agreement, you can't deviate from it now. This can be a little bit more tricky if the new employer, the perspective employer, sends you a form to complete and says this is how they want the reference to be completed rather new writing something yourself. But what you could do then is potentially cut and paste. Exact phrases from the agreed reference say that you don't deviate from it in any way or that probably best approach is just to send the agreed reference and to save to the perspective employer. This is a way that you give references on unless is a regulatory body that says You've got to give a reference in a different way for a particular job that should suffice. Now what is a satisfactory reference? You receive a reference on There's something in it that makes you concerned about employing the individual. You've already made an offer of employment subject to references. Can you read a reference and say no? On the basis of that, I don't want to employ you on. Therefore, I'm withdrawing the reference. The answer to that is yes. In the case of Wishart versus the National Association of Citizens Advice Bureau, 1990. Exactly this issue was raised, the individual had been given offer of employment reference was saw. The reference made a raised a number of issues about the employees attendance record. So the employer went back to the individual are some more questions about their attendance? The perspective employees was a bit evasive, said one thing about their health on that didn't tally with what their ex employer was saying on. And the new potential employers said no, this is not satisfactory reference. Were not happy with the attendance. Also were not happy with the. The discussion we just have is part of the investigation, and therefore we're withdrawing the offer employment on the individual challenge that and said, Actually, the reference wasn't unsatisfactory, Andi, it was ruled. Now it's the perspective employer read something here, something in the reference that where is them? As long as the offer of his employment has been made subject to satisfactory references, is up to the employer to decide what they deemed to be satisfactory. Andi, of course. What one employer might be OK with another might not be. Now, if a reference is given, the reference must be fair and not misleading on. In many ways, this isn't a particularly concerning statement because I think we would all agree that if we're going to give a reference, it should be accurate. But the key message here is, Who's tracking in the organization on? Are we taking good care to ensure that a reference is accurate in the case of spring? But got versus Guardian Assurance PLC 1994. The individual had gotten off for employment with a new employers, subject to references on the reference from his existing employer was termed by the judge as a kiss of death to his career. He worked in financial services. Andi. It was fair to say that he had made some mistakes, but the reference actually said he was dishonest, had a lack of integrity. And of course, you're not going to employ somebody like that. Probably it all, but definitely not in financial services when he's dealing with money. The offer of his earth employment withdrawn on Spoon challenge this successfully because the reference was wrong. Now it's really important that writing references isn't just delegated to the most junior person in the organization. To fill in the form that the employer has sent Andi, just send it back. If that reference is wrong, there is the possibility that the employees could seek damages from you. So it's really important that the some checking process in place, and not only that somebody is checking that the references right. But there is clarity about who can give a reference in the organization. But I don't excuse may. So our line managers allowed to give references. Some organizations say yes. Some say no, not a problem. Do you have a clear policy in place on If you say line managers are not allowed to give references, But they come from the central HR department, for example, could align manager give a personal reference quite often if somebody's worked there for a while? Of course, line managers get to know an individual personally on it might be that the individual asks for a personal reference there. Would you allow that? And if so, are you going to say that the reference cannot be on company headed paper? I just need to have a clear process in place for checking references and for knowing who is allowed to give them. Can you give a negative reference? Yes, you can assaults. It's true, Andi, as long as the employee has had the opportunity to respond to any allegations or any criticisms that you're going to make him the reference. So in the case of TSB Bank PLC versus Harris, the employee hod secured a new job needed a reference. Andi, the employer, read the reference and referred to 17 customer complaints that have been made against Harris. The new employer probably know, surprisingly, withdrew the offer of employment. Now they were factually correct. Customer complaints have been made about her, but she didn't know, and she had never been given the opportunity to put her side of the story on. Of course, the customer is always right, and unless I'm wrong, and maybe it waas that customers were complaining because Harris had applied to company rule. So maybe it waas that they were unhappy, for example, that they had been refused reputation for a mortgage. But she had had to refuse it because they didn't meet the company requirements for mortgage. But they were complaining about her a za face of the organization. Now I don't know whether that's true, because these allegations had never been investigated on DSO. It was found to be a lawful to use complaints that have been made on individual unless had been investigated on, and the employees had been given the chance to put their side of the story. I said we'd come to a case about settlement agreement references and and here is the case of Naser versus NHS, England and Carpentry City Council 2015. Now, in this case, the employee was leaving the organization Andi as part of the settlement agreement that they'd entered into an agreed set of wording for the reference had been reached. The individual Naser applied for another job was offered it subject to references. Andi. The agreed reference was sent off to the commentary City Council. So the perspective new employer, Andi, with the reference was a letter from the line managers saying, If you'd like to discuss this further, please give me a call. Julie The call was made on the manager. So Naser is original line manager expressed the opinion that she would know reemploy Naser primarily due to a poor attendance record. Naser Waas disability disabled as defined in the equality at 2010 and have had quite a bit if absence due to her disability, the offer of it employment was withdrawn on laser brought a claim of discrimination rising from disability on was successful in this claim. Firstly, the employer, both the perspective employer on the existing employer, had, uh discriminated against her the existing employer, in talking about medical situation in in the negative way on the perspective employer in finding out that she waas disabled as defined in the Equality Act 2010 on, then withdrawing the offer of employment. Of course, the obligation on the employer is to make reasonable adjustments to help the individual overcome any disadvantage that that disability might bring for them. So if there is an agreed reference, that agreed reference should be supplied. But also there shouldn't be anything additional given whether that's in writing or verbally. So under the data protection at who can see a reference well, employees can make a subject access request on asked to see any information that you as an employer, is holding about them. However, there is an exemption in the data protection at 2018 relating to references, which allows an employer to refuse to disclose a confidential employment reference. If an employee requests access to it. However, the employer yourselves can choose to disclose a reference. If you want to do so, if you dio, then you mustn't disclose any information about the third party. For example, if the reference refers to somebody else on also, you shouldn't disclose who wrote the reference. But usually the employees would know that anyway, because they gave the referees name. If the writer of the reference agrees to the reference being disclosed and agrees to their name being disclosed disclosed, then you can disclose it anyway. If the writer of reference doesn't give their permission, then you could disclose as much of the reference as possible without identifying who had written it. Although that probably is going to be quite difficult to do, it is important to be aware off discrimination. Andi, particularly here. Victimization. Andi Post employment victimization. Victimization is when somebody is treated less favourably because they have brought a claim of discrimination or they have supported somebody who has brought such a claim that's referred to as the protected act. Now, if somebody is in employment, Andi brings a claim of discrimination on then it's a result of that you with help. The reference that would be victimization on it can apply post employment on there waas some debate in a number in a couple of contrasting cases that were heard in the Employment Appeal tribunal as to whether post employment victimization wasa potential claim and it is that has been clearly ruled by the court repeal. So what this means is that the individual has left your employment on normally in their situation, you would have given a reference, but because they brought a claim of discrimination against you or they supported somebody that has you refused to give a reference that would be post employment victimization. And even though the individual is no longer an employee off yours, they could bring a discrimination claim. So the simple rule is that if you would normally give a reference on the reason that you don't want to give a reference in this particular situation is because the employee has brought or supported somebody brought a claim of discrimination, then give the reference treat the individual exactly the same way as you would anyone else. Of course, if your normal situation is that you don't give any references for anyone, then you don't need to treat the individual more favorably by giving them a reference is just ensuring shoring, consistency of approach. And then finally, just to look at the potential claims that the individuals got, if you refuse to give a reference or if you give a wrong reference or inaccurate reference. First of all, if the employee is still employed by you, there is a potential that they could claim a breach of mutual trust and confidence. If you gave an inaccurate reference or a reference that was misleading, so not necessarily blatantly untrue, but a reference that suggested to a potential employer that there was something wrong. Excuse me again. If the employee is still in employment with you, they could resign and claim constructive dismissal if they could show that what you had done had breached the contract of employment on this would have to be saying something or writing something that that meant that they didn't get the job that they had gone for. Constructive dismissal is when the employee resigns in response to the employer breaching the contract of employment on the employee does so in a timely manner. Now, this kind of only apply when the employee is still in employment because, of course, wouldn't save left your employment there is no longer a contractual relationship between you and the employees on the same, with a breach of duty of care in all contracts of employment, there is an implied duty of care that both the employer and the employee will take care in the way that they exercise the employment relationship. If you gave a factually incorrect reference on this meant that the individual didn't get the job that that applied for, then they could argue that there had been a breach off that duty of care. If the references particularly damning particularly negative than it is possible that the individual could claim defamation of character and seek damages in the courts for that Andi, if the reference was wrong due to negligence, then it is possible that a claim of negligence could be brought against you, and damages for that could be sort. So the key messages that you don't have to give a reference unless you're in one of those situations that we looked at at the start when you have got to give a reference, if you do give a reference, make sure it's correct and make sure that you have a policy in your organization about who can and cannot give references on and be careful to ensure that reference is accurate so that none of these claims can be brought against you. Thank you for listening.
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