UK: Unfavourable references

An employer wrote a reference for an employee containing opinions formed following an earlier investigation into the employee’s conduct. The employee objected to the reference and argued that the employer should have first satisfied itself that the investigation into the employee’s conduct was reasonably conducted and procedurally fair. However, the Court said that where an opinion is derived from an earlier investigation the referee had to do no more than take reasonable care in considering and reviewing the underlying material so that he or she could understand the basis for the opinion. Unless a “red flag” such as an obvious irregularity prompted further inquiry, there was no duty to examine the procedural or substantive fairness of the underlying investigation.

Comment:

Many employers choose to keep references to minimum factual details of dates of employment and posts held because misleading or inconsistent references can risk claims for negligence, discrimination or breach of the implied term of trust and confidence. Having a reference policy can help minimise those risks. Where an employer is under regulatory requirement to give a reference, it is important to ensure sufficient documentation is kept on the employee’s file to be able to meet those requirements.

Hincks v Sense Network Ltd [2018] EWHC 533 (QB) (LINK)