In the case of Mark Jackson v Liverpool City Council, Mr Jackson was employed as a Youth Social Worker at Liverpool City Council. After 12 years he left to join Sefton Borough Council and in doing so he was provided with a favourable reference from Liverpool City Council. A year later, Mr Jackson applied for a different job within Sefton Council, a recruitment process which necessitated further references. However, on this occasion, the reference provided by Liverpool City Council raised concerns and lead to Mr Jackson failing to secure the role.
In providing the reference Mr Jackson’s former manager failed to reply to a question regarding whether she would re-employ Mr Jackson in the future and, in response to a question about Mr Jackson’s weaknesses, she stated that “there were some issues identified by his team manager in respect of recording and recordkeeping… This would have led to a formal improvement plan to assist Mark to make improvements in this area. Mark left the service before this process was instigated.”
On receipt of this reference, Sefton Borough Council followed up with a telephone call to Liverpool City Council who elaborated on the written reference by explaining that, following Mr Jackson’s departure, employees who had taken over his cases had raised some concerns that certain work and contact with individuals had not been carried out, even though the records suggested it had been done. However, it was also made clear during the telephone conversation that these allegations had never been formally investigated and Mr Jackson had been given no opportunity to comment on the allegations.
On the basis of the information provided, Sefton Borough Council decided not to appoint Mr Jackson to the new position and he subsequently pursued a claim of negligence against Liverpool City Council for damages in relation to the reference it had provided.
The case was heard in Liverpool County Court where it was found that, although the reference provided was accurate and true, it was ultimately unfair as it carried with it an unanswered, uninvestigated allegation which implied that Mr Jackson was unfit for employment and which Mr Jackson had no opportunity to refute. On that basis, the Court found that Liverpool City Council had failed in its duty to only provide a reference which is true, accurate and fair. Liverpool City Council appealed against this finding to the Court of Appeal.
The Court of Appeal observed that the reference which had been provided was both true and accurate and questioned how Liverpool City Council could have honestly answered the questions posed by the reference without identifying the particular concerns which had come to light following Mr Jackson’s departure. The Court of Appeal placed particular emphasis on the telephone conversation which had taken place between Sefton Borough Council and Liverpool City Council and found that this formed an integral part of the overall reference provided. The Court of Appeal therefore found that it was fair to include cautionary remarks in the reference based on allegations which had been raised as it had been made clear to the recipient of the reference that these allegations had not been investigated or substantiated. The Court of Appeal therefore found that the reference was true, accurate and fair and Liverpool City Council’s appeal succeeded.
There is of course no obligation for an employer to provide a reference for a previous employee. However, where they choose to do so, they must ensure that any such reference provided is true, accurate and fair otherwise they may incur liability for losses suffered by the individual as a result.