The common misnomer that an employee is entitled to a good reference, or at the very least entitled not to be given a bad one, has, once again, been tested before the Courts.
The Court of Appeal has made it clear, in the recent case of Jackson v Liverpool City Council, that even a reference which appears on its face to be unfair can be lawful if the facts are true and accurate.
Mr Jackson was employed by Liverpool City Council in its youth offending team. He left the Council to commence employment with Sefton Borough Council and received good references. However, when he subsequently applied for a role in Sefton Borough Council’s youth offending team, one of the three references sought from Liverpool City Council came with a caveat and indicated that there had been some issues with regards to Mr Jackson’s record keeping. Although the reference made it clear that these ‘issues’ had not been investigated, the fact of the reference was sufficient to deprive Mr Jackson of the role, and he remained unemployed for a year thereafter.
Mr Jackson’s claim against Liverpool City Council for negligent misstatement failed. Notwithstanding the reference to matters which were untested and unproved, the reference was considered by the Court to be true and accurate.
The decision may give comfort to some employers that would prefer not to water down negative references. However, one should still proceed with caution and ensure that all facts are accurate, and can be demonstrated to be so should it become necessary.