Employers should play it safe when asked about a former employee’s job history
A reference request lands on your desk asking for the following information. Why did Jim leave your employment? How many days of sickness absence did he have in the last 12 months? Was he subject to any disciplinary proceedings during his employment?
As you reach for your pen to wreak your revenge (‘Jim was the subject of a four-month disciplinary investigation, had an ongoing grievance......’) good sense prevails: you put down your pen, breathe and start filling out the company’s factual reference template in accordance with company policy.
However, a recent case is a reminder that, in the real world, things don’t always go this smoothly.
Facts
The case AB v Chief Constable concerned a senior police officer who had served for over 24 years. Before leaving the force, disciplinary proceedings were instigated against him. By this point in time, the police had adopted the practice of providing standard references for employees who left the force.
After a period of long-term sickness absence (and just before the disciplinary hearing took place), AB resigned from the police to take up a job with a regulatory body. In its reference request, the regulatory body asked for details of AB's sickness absence and disciplinary history. In accordance with its policy, the police force's HR department issued AB with a standard, factual reference.
On learning that only a factual reference had been supplied to AB's new employer, the deputy chief constable of the police force in question decided to send a further reference, which included information about the disciplinary hearing and sickness absence. Before sending it to AB's new employer, this second reference was sent to AB who, unsurprisingly, objected to this information being passed on to his new employer.
AB served the police with a notice under section 10 of the Data Protection Act 1998 stating that it would be unlawful for the police to send out the second reference because the information in it constituted sensitive personal data. He also instigated public and private law claims against the police.
High Court
The police argued that it had both private and public law duties to inform the regulatory body about AB's employment history, and felt it had a positive duty to correct the misleading information already given in the first reference.
The High Court found that while the first reference was inadequate, the duty of care imposed on the police did not require a further reference to be provided. The court decided that although the police force does have a public duty to act honestly and with integrity, that was effectively trumped by its data protection duties and its specific duty to AB, who had been led to believe that a standard reference would be provided.
Comment
Although this case involved a public body subject to more stringent public law duties than most employers, it does provide some useful pointers for employers giving references. Employers should remember that:
- if an organisation decides to provide a reference, it has to exercise reasonable care and skill to ensure that the reference is true, accurate, fair and not misleading
- organisations providing references owe a duty of care to both the recipient and the person who is the subject matter of the reference
- references are likely to constitute personal information and potentially sensitive personal information if, for example, they contain details about sickness absence, so organisations must ensure they are complying with the data protection principles
- if organisations promise a reference as part of a settlement agreement, it is sensible to include a provision that allows the employer to refuse to provide a reference if it finds out information after the settlement has been concluded which changes its opinion of the employee.
If in doubt, remember, employers do not have to give a reference at all.
Sophie Roberts is an associate in the employment team at Penningtons Manches
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