An employee cannot prevent a public sector employer from mentioning disciplinary issues in a job reference, according to a recent court case.
Judges ruled in AB –V- Chief Constable, High Court 2014 that an employee’s disciplinary record should be known to a future employer if the post was in the public sector.
A police officer brought a case against a chief constable whose force wanted to mention disciplinary issues in the job reference.
But the court said that if the employers and employee were in the private sector then only a ‘bare bones’ reference with basic details would be required.
The officer was demanding that his former employer stuck to the trend for employers to offer references that contain only a job title and employment dates.
Reasonable job reference
There is no legal duty for an employer to provide a job reference but if they do then the employer must exercise care in drafting it.
Past tribunal cases suggest that this means that a reference must be factually correct and contain opinions that are reasonable.
In the case of Bartholomew –V- London Borough of Hackney 1999 IRLR 246, the Court of Appeal ruled that an employer’s job reference must not give an unfair or misleading impression, even if its discrete components are factually correct.
Therefore, if an omission renders what has been written in a job reference misleading, the employer is open to being sued for negligence.
The solution to this kind of bind is to simply exclude liability when providing a job reference.
Job references could contain a clause at the bottom expressly denying liability for any reliance placed upon the contents.
This protects the employer from both the departing employee, who maybe disgruntled by the absence of glowing praise and the receiving employer who may suffer losses as a result of employing an under-performing employee.