Can a reference be allowable even though it is “unfair”?

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Employment law solicitor, Roger Cheves on the Court of Appeal’s latest decision

According to the Court of Appeal in the recently reported case of Jackson v Liverpool City Council the answer to the question ‘can a reference be allowable, even though its unfair’, is a resounding, “yes”.

The Claimant worked for the council in its youth offending team. He left to join another Council with good references. He then applied for a post with the new council in its youth offending service. One of his three references from his former employer (Liverpool) was qualified; suggesting there were record keeping issues. These issues, however, had not been investigated before he left: something that was confirmed in the reference itself. As a result of the reference, the Claimant failed to get the job and was unemployed for a year.

The judge at the original trial decided that the reference was true and accurate even though it referred to matters which were untested and unproved. The claim for damages for negligent mis-statement, brought by the Claimant therefore failed. The Claimant took the case to the Court of Appeal but, perhaps surprisingly, that court took the same view.

This decision adds considerable weight to the general advice I have always provided to employees, that it is wise when leaving any employment, to agree the wording of the reference that will be provided before departure. Most reputable employers will be happy to agree to this and (largely) it serves to eliminate the risk of future misunderstandings.

For free initial advice on any employment law issue or any employment dispute, contact Roger Cheves on 01392 423000. Roger heads up Slee Blackwell’s Employment Law team and advises both employers and employees.