Employer Liability: References

Ex-employer liable for loss of earnings arising from poor reference

Employers are often asked to provide references for ex-employees and it is a common misconception that they cannot provide a bad reference. However, whilst employers have the freedom to give a poor reference, this is not without risk. An employer can be liable as a result of a reference given to a former employee.

In Bullimore v Pothecary Witham Weld Solicitors, a firm of solicitors gave a poor reference to an ex-employee because she had successfully pursued a discrimination claim against the firm. The reference commented on the discrimination claim, her "poor relationships" with the firm's partners and also added that she was "inflexible" in her opinions. When the new employer received the reference, it withdrew the job offer. 

The Employment Appeal Tribunal made it very clear that the new employer's withdrawal of the job offer was not only foreseeable, but a "direct and natural consequence" of the information supplied in the reference. The firm was therefore liable for her future lost earnings which were caused by the withdrawal of the job offer.

The giving of a poor reference, or refusing to give a reference at all, is the most common type of victimisation complaint. Employers should steer clear of mentioning the fact of any allegation of discrimination. Furthermore, to minimise the scope for claims, employers should have a clear policy in place over who can provide references and what they should include.

For further details, contact our Employment Law Team.

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