Thank you. In general, there is no legal obligation on employers to provide a reference for past employees, with the only exceptions being if there was a contractual obligation to do so or for very limited types of roles in the financial sector. It would also be discriminatory if a reference is refused because of someone’s age, gender, race, religion, disability, sexual orientation.
If an employer decides to issue a reference, they will automatically owe the subject a duty to take reasonable care in its preparation. This requires the employer to be accurate in the contents of the reference and ensure it is true, accurate and fair and does not provide a misleading impression.
Certain principles have been established through case law over the years when assessing the duty of care owed by the employer, as follows:
1. The main test is from the case of Lawton v BOC Transhield, which requires a court to ask whether a reasonably prudent employer would have expressed the opinions which were stated in that particular reference and to ensure the accuracy of the facts upon which any opinion expressed in the reference was based.
2. In the case of Bartholomew v London Borough of Hackney the employer provided a reference which contained details of disciplinary proceedings pending at the time the employee left. The court decided that the employer had not breached its duty of care by providing such a reference as it would have a duty to provide a reference that is true, accurate and fair and does not present facts so as to give a misleading impression overall. Therefore, if the employer had not included details of the disciplinary proceedings it would have failed in its duty to the prospective employer to provide a reference that was not unfair or misleading.
3. In the case of Cox v Sun Alliance Life Ltd the employer provided a reference that contained details of an employee's alleged misconduct. However, they did not properly investigate these before providing the reference and the employee challenged the information in it. The court decided that an employer will be negligent in providing a reference that refers to an employee’s misconduct unless the employer had carried out a reasonable investigation and had grounds for believing that the misconduct had taken place. Conversely, had they referred to the alleged misconduct but stated it had not been investigated, it would have been acceptable as that would have been a fair and accurate description.
So if it is obvious that incorrect facts have been relied on or the contents are false or misleading, the employee could consider taking the matter further.
However, if the reference contained reasonable details about what had happened, and in case of a disciplinary, they had been properly investigated, then it is indeed potentially possible for them to include details of what had happened in the lead up to your resignation.
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