Provision of references, case 2

Case ref: 7.6/May 05

Summary of case

A PCS member had been employed in a Civil Service department. He applied for a job with a local authority. He was offered a job. The offer was conditioned on the local authority obtaining satisfactory references. Following receipt of the reference provided by the Civil Service Department the local authority withdrew the offer of employment.

Advice requested

The solicitor was asked for advice on whether or not there are reasonable prospects in succeeding in a claim to the County Court or High Court based on an alleged negligent reference.

Key advice provided by Thompsons

Thompsons advised that the "test" in these cases is as follows: 

"Your member received a letter dated 13 July 2001 from the local authority informing him that the reference obtained from the Civil Service Department was unsatisfactory to them and that the offer of employment had been withdrawn. I understand that the above member seeks to challenge the Civil Service Department's conduct in providing a reference, in respect of their failure to provide the local authority with specific details of the dates of absence and the reason for each absence. 

"The employer owes a duty of care to an employee about whom he writes a reference. The employer's duty is to take reasonable care in the preparation of a reference, and he will be liable to the employee in negligence if he fails to do so, and the employee thereby suffers damage. 

"The obligation on the employer is to provide a true, accurate and fair reference. The reference must not give a misleading impression. However, as long as the reference is accurate and does not tend to mislead, there is no obligation on the employer to set great detail or to be comprehensive. 

"In order to succeed in an action based on an allegedly negligent reference, a claimant will have to show first that the information contained in the reference is misleading, second, that it would be likely to have a material effect on a reasonable recipient and, third that the defendant was negligent in compiling the reference." 

The advice letter went on to say that with regard to the member's case: 

"The Civil Service department have provided details of the total number of days sickness absence in the 2 year period, and the number of instances of absence. The department has also noted that your member has had a neck and back injury, has a registered disability, and suggested that there may be a connection with his high level of absence. 

"From the information provided, I consider that a Court is likely to take the view that the reference as provided by the Civil Service Department was true, accurate and fair, and did not tend to mislead the local authority. From the information provided I do not consider that there are reasonable prospects of the above member succeeding in a claim to the County Court or High Court based on a negligent reference."

Legal Department Comment

The advice provided by Thompsons neatly summarises the legal requirement on the provision of references.

Officials may wish to note that further advice on this can be found on pages 34 and 35 of the 2005 Labour Research Department booklet Law at Work. 

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