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Legal Lessons: Receptionist demands positive reference

Barristers Michael Salter and Chris Bryden give advice on what to do if a staff member about whom you had performance concerns, but never disciplined, demands a postive reference.

Barristers Michael Salter and Chris Bryden give advice on what to do if a staff member about whom you had performance concerns, but never disciplined, demands a postive reference.

THE SITUATION

One of my receptionists recently left the practice. She says I am legally obliged to give her a positive reference, which she can take away and use as she wishes. It is fair to say that we did not have to discipline her during her employment. However, we did have various concerns about her performance. What are my obligations?

THE ADVICE

There is no statutory obligation that requires an ex-employer to provide a reference. However, there may be an express obligation in the contract of employment, or implied in the contract, if for instance the employer has always provided references in the past for people who occupy this position.

Further, if it is common in the ‘trade' for a particular role to be provided with a reference on the termination of employment, and it would be unreasonable to expect a new employer to recruit such an employee without a reference, it may be possible to imply such a term into the contract of employment.

There may also be an agreement between employers and trade unions on the provision of a reference. This may contain broad stipulations as to the contents. However, this is unlikely to be the case here.

In any case where a reference is provided, either because of an express or implied obligation, or by choice, the employer must take reasonable steps to ensure its contents are not misleading.

If a new employer suffers a loss as a result of relying on the reference, the practice could be liable to pay compensation for that loss, if the new employer can show that the provision of the reference in those terms was negligent or deliberately misleading. A disclaimer in the reference is unlikely to provide an adequate defence in such a case.

But equally, a disgruntled ex-employee may be able to claim compensation if their employer does not take reasonable care in preparation of a reference, and that reference adversely affects career prospects. So a malicious or negligent reference can give rise to a compensation claim just as much as a reference that makes false claims of competence and honesty.

To compound the risk, it is not unknown for an ex-employer to provide a glowing reference and then find it is used against them in unfair dismissal proceedings brought by the ex-employee. Alternatively, if an employer gives a current employee an unfair reference, that employee could resign and rely on the reference as grounds for a claim of constructive dismissal.

If a reference is accurate and fair and does not give a misleading impression there is no obligation for it to go into great detail or be comprehensive. Often the employer will provide a ‘factually correct' reference that simply says no more than what can be objectively verified, such as the length of time the employee worked for the employer, the role they occupied and the tasks they carried out.

If the reference contains no misleading information (either by deliberate omission or selective inclusion) there should be no issue of liability.

Michael Salter and Chris Bryden are barristers at 2 Gray's Inn Square Chambers: www.2gis.co.uk. Legal points are provided for information and discussion only and are given without obligation. For specific legal advice consult your solicitor.

Receptionist

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