It is well established that an employer giving a reference owes a duty of care to the relevant employee. In Jackson v Liverpool City Council, the Court of Appeal had to consider the scope of that duty when new allegations come to light post-employment. Mr Jackson was a social worker with Liverpool City Council (Liverpool). On the back of a reference from his manager prior to leaving Liverpool, he secured employment with Sefton City Council (Sefton). A year later, he applied for a further position with Sefton and references were sought from various sources, including Liverpool.
Since Mr Jackson had left Liverpool, various issues had come to light regarding his record-keeping. A concern was that contact with certain individuals had been recorded but not actually carried out. However, the allegations had not been investigated and Liverpool had to decide how best to respond to the reference request. They dealt with this in their response to the reference request by:
- Refusing to answer two questions:
(i) Would Liverpool re-employ Mr Jackson?
(ii) Was there any reason why Sefton should not employ him?
- Speaking to Sefton and explaining that allegations had been made but not formally investigated and this was the reason why these two questions could not be answered either positively or negatively.
- Making it clear that if the allegations had been investigated and upheld, they would have resulted in a performance improvement plan rather than formal disciplinary action.
Mr Jackson did not get the job and was out of work for a year. He sued Liverpool for damages. The Court of Appeal held that Liverpool’s response to the reference request could not be criticised. The Court considered what else Liverpool could have done. One option was to give no reference. The Court concluded that would have arguably left Mr Jackson in a worse position. When Liverpool gave Sefton a reference, it was at least open to Sefton to speak to Mr Jackson to see if he could provide an explanation. A second option was to investigate the allegations but the Court concluded that was also fraught with difficulties. Finally, it could have contacted Mr Jackson to get his views on the allegations prior to responding to the reference. In the context of a reference request, the Court thought there would not be sufficient time for this.
Impact for employers
- There is no duty to provide a reference. However, if references are generally given, then failure to give a reference to one individual could give rise to a complaint of discrimination.
- References must be true, accurate and fair and not create a misleading impression. If allegations surface after employment has ended, employers can refer to them, but should make it clear they have not been investigated.