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Q: What should we say in a reference for a former employee? A: We are often asked for advice on how to respond to a request for a reference for a former employee. It is well known that employers can be held liable for failing to given an accurate reference about an ex-employee, so what should you say? The reference must overall be true, accurate and fair and not give a misleading impression to the reader. In a recent case, Mark Jackson v Liverpool City Council, The Court of Appeal was requested to consider a reference provided by Liverpool City Council to Sefton Borough Council in respect of Mr Jackson and to decide whether or not they considered the content to be unfair. Mr Jackson had been employed by Liverpool City Council as a social worker and moved to Sefton Borough Council. After he left Liverpool City Council some concerns were raised about his work but no investigation was ever carried out because he was no longer an employee and doing so would involve “legal and practical difficulties”. The reference request asked a number of specific questions, one of which was in relation to his weaknesses. Liverpool City Council responded: “There were some issues identified by his team manager in respect of record and record keeping. This was addressed by a supervisor and would have led on to a formal improvement plan to assist Mark to make improvements in this area. Mark left the service before this process was instigated.” The Liverpool City Council representative spoken on the telephone to Sefton Borough Council reiterating that the concerns had never been investigated and that she was unable to answer certain other questions in the request “in either a positive or negative manner”. As a result, Mr Jackson was not given the job and was subsequently unemployed for about a year and so had brought a claim against Liverpool City Council for damages in relation to his reference. This went to the High Court who ruled that the Council was in breach of its duty of care in that the reference was unfair even though it was true and accurate, because the Council should not have referred to allegations that had not been investigated nor to which Mr Jackson had been given the opportunity to answer. Liverpool City Council appealed against this decision. The Court of Appeal disagreed with the High Court that the Council could have refused to give a reference as this may have led to adverse inferences being drawn anyway and suggested that Sefton Borough Council could have discussed the issue mentioned in the reference with Mr Jackson to satisfy themselves one way or the other. We recommend our clients to have robust procedures in place for giving references in respect of ex-employees and, as an employer is under no duty to provide a reference, it is safer to decline to give one stating this is “Company Policy” or to perhaps simply confirm that the employee was employed from this date to that date and their role.

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