A reminder on references
In Thour v Royal Free Hampstead NHS Trust the High Court held that a Laboratory Services Manager could not sue an NHS hospital for libel over a statement contained in an employment reference.
Mr Thour received a job offer at Barts and The London NHS Trust (“Barts”), subject to receipt of satisfactory employment references. Mr Thour’s former manager at the Royal Free Hospital in Hampstead, Mr Bryon, provided a reference, explaining that he believed that Mr Thour could perform the job at Barts to a high standard. However, in response to a question about whether he would re-engage Mr Thour, he stated that he would not because Mr Thour had been “under investigation following allegations of aggressive behaviour” when employed at the Royal Free Hospital and that he had “resigned during the investigation process.” As a result, Barts withdrew their job offer.
The reference provided by Mr Bryon was partially inaccurate. He later contacted Barts to explain that the investigation into Mr Thour had been completed prior to his resignation and he had received a formal warning. He also stated that he wished to withdraw the reasons he had given for why he would not re-engage Mr Thour.
Mr Thour raised libel proceedings in the High Court against the Royal Free Hospital in Hampstead but the claim was dismissed. Employers providing references are protected (under qualified privilege) against libel claims, provided that any inaccurate statements have not been made maliciously. The Judge held that Mr Byron had not acted with malice (malice requires proof that a defendant knew that the words complained of were false, or was reckless as to whether they were true or false).
While this is an English libel case, it offers a useful reminder to employers that caution should be exercised when providing references. Potential risks for employers asked to provide references include claims for libel / defamation, negligence, discrimination and breach of contract.
Generally there is no legal obligation on an employer to provide a reference for an employee or ex-employee. However, limited exceptions to this general rule exist, including where the individual is seeking employment in a FSA-regulated firm or where there is an agreement to provide a reference in terms of a compromise agreement.
- Have a policy in place regarding which employees / level of management can give a reference, in what format (i.e. verbal/ written) and what it can include. Ensure that references are provided in accordance with any such policy.
- If verbal references are given, retain file notes of these conversations.
- If you are providing a dates and position only reference, explain that it is your policy to do so.
- Apply your policy consistently to all employees and ex-employees.
- Ensure that the reference is consistent with the real reason for the dismissal and any reasons provided.
- Take care to ensure that any refusal to provide a reference is not discriminatory.
- Omit inaccurate, misleading statements.
- Remember, the reference does not need to be full and comprehensive.
- If you are making reference to any complaints or performance issues, ensure that the employee is aware of them.
- Ensure that any comments about performance or absence are not related to a disability.
- Any comments on suitability for a new job should be given with care.
- Mark the reference as “private and confidential” and “for the addressee only”.