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The Pitfalls of an Employer's Reference

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The Pitfalls of an Employer's Reference

A High Court ruling clarifies for employers the perils of drafting an employer's reference and the delicate balance that must be achieved between competing interests. 

In the case of AB v A Chief Constable [2014] EWHC 1965, the High Court decided against the chief constable’s argument that he was under a public and private law duty to send a second reference to a prospective employer of the former employee because the first reference was inadequate.

The prospective employer sought answers to specific questions and wrote again for clarification when the Chief Constable sent a standard reference initially confirming the job title and period of employment of the employee, together with a standard disclaimer not accepting liability for damages or losses arising from reliance placed on the reference.

The former employee’s solicitors served the Chief Constable with a notice under s.10 (1) of the Data Protection Act (DPA) 1988 as he disclosed in the second reference absences of the former employee over a period of 12 months leading up to the former employees resignation just before a gross misconduct hearing for dishonesty as he attempted to employ a friend to the special constabulary.

The High Court’s Ruling

The High Court agreed that the first reference was indeed inadequate. However, it concluded that the Chief Constable was wrong to send the second reference and was not under a duty to do so. The first reference would have sufficed and the prospective employer would have accepted that the force did not provide anything other than a standard reference with a disclaimer. The Court held that the former employee had a legitimate expectation to a standard reference.

It further held that the information disclosed such as sickness absence was sensitive data and fell under the DPA and could not have been disclosed without the consent of the former employee and had to be processed fairly and lawfully. The disclosure of information regarding disciplinary proceedings had to be balanced against right to privacy of the employee and the public interest in disclosure. In the court’s eminent view the balance of fairness weighed in the former employee’s favour as the second reference would jeopardise the former employee’s current job and he could not defend the allegations as a former employee.

Observation

This case illustrates the dilemma that employer’s face in trying to deal with the competing interests of a former employee and that of a prospective employer seeking a reference that is not misleading or inadequate. Clearly, the balance of convenience is likely to fall in the ex-employee’s favour as the most vulnerable party.

This case also raises two clear points for employers to be mindful of and these are firstly, that standard references should include disclaimers and this prevents employers from being exposed to claims under the DPA or tribunal claims like victimisation. Secondly, from the employee’s perspective this case demonstrates how section 10(1) of the DPA can be applied to an employee’s advantage.

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Javed is the Managing Director of Merchiston Solicitors Ltd. He is a seasoned lawyer with both private and public practice experience, specialising in a broad range of areas of law. Javed is a qualified international commercial arbitrator and is a member of the Chartered Institute of Arbitrators (CiARB). He appears before tribunals in international arbitrations abroad, and under a variety of laws and institutional rules (including ICC, UNCITRAL, and ICSID).

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