Cautionary tale about negative verbal references

A recent case has highlighted the need for employers to be careful when giving verbal references about employees. When giving a reference about an employee, an employer owes a duty of care to the employee and the employer can be liable in damages if the employee suffers loss as a result of the employer’s negligent preparation of the reference.

Also employers must be conscious of possible discrimination claims when either refusing to provide a reference or the content of the reference is discriminatory.

In the case, Ms Paisner was employed by Coventry City Council. She was disabled within the meaning of the Equality Act 2010. She had two operations which resulted in two operations which resulted in significant absences from work.  In March 2013 she was made redundant. She signed a Settlement Agreement which included an agreed reference as part of its terms.

When she worked for the Council she received a positive appraisal from Ms Tennant and she was endorsed in her application for a secondment.  She subsequently applied for a new job with NHS England. This was for a new role which involved more responsibility than her previous roles with the Council. She was offered the job but this was subject to satisfactory references. She accepted the job and NHS England applied for a reference from Coventry City Council on their standard template.

Ms Tennant provided a reference which had been agreed as part of the Settlement Agreement with the Claimant. However, she sent the reference by email and offered to discuss the matter further.

NHS England phoned Ms Tennant and sought further clarification. Ms Tennant then told NHS England that the Claimant had had a significant amount of time off in her previous role and said that she would not recommend the Claimant for the new role. She implied that the Claimant’s previous sickness absence had adversely affected her performance and that the Claimant may struggle to cope with pressure.

NHS England withdrew the job offer from Ms Paisner.  She brought a claim for disability discrimination in an Employment Tribunal and it was found that there was a case to answer.

The case shows the dangers to employers and prospective employers when seeking and providing references.   The former employer should have stuck to the reference which was agreed as part of the Settlement Agreement when giving the verbal reference about the employee.

There is therefore a danger when giving verbal references which do not accord with a written agreed reference or a factual reference that an employee will bring a claim for discrimination or a claim for negligent misstatement if a job offer is withdrawn as a result of the reference.

About the author

Glenn Jaques is a director and solicitor specialising in employment law at our Sheffield office.

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