Following on from last month’s BLE article ‘Employee References: A Legal Minefield’ a recent Labour Court ruling has thrown up this issue once again however concentrating solely on the uncommonly discussed accuracy of referencing on this occasion.
Employers have largely up until this point battled with the ‘should we, should we not’ issue surrounding whether they are legally obliged or otherwise to provide past or indeed current employees with employment references, and if so what they are/are not obliged to include. Now it seems that even if an employer on the surface feels as though they have fully obliged the employee by providing what they deem a positive employment reference, additional caution now must be exercised surrounding the accuracy of the detail provided as they could unwittingly be leaving themselves open to a claim.
It is the case of HSE v A Worker (LC – AD1248) that provides key consideration in this area as in this case the Labour Court ruled that an employee be awarded €10,000 and given a permanent position due to the distress and delay caused by a reference which was deemed to have contained ‘inaccurate and incorrect information’. The employer in this instance maintained that it acted in good faith. Notwithstanding this, it was found that the employer failed to be pro-active in rectifying the reference inaccuracies when pointed out to them. This inaccurate reference subsequently jeopardised the employees opportunity for a permanent position which she had been offered pending satisfactory references.
The Labour Court in their recommendation stated that “the complainant had a permanent job offer withdrawn by the HSE on foot of an internal reference that contained inaccurate and incorrect information about her work performance and employment record. Despite the complainant’s best efforts to have it removed or corrected the reference was retained on file and was available to any other employer that considered offering her employment thereby severely prejudicing her prospects of finding permanent employment in a major area of her chosen profession. The Court takes the view that this was a severe wrong perpetrated on her by her employer that was compounded by the manner in which it dealt with her after the inaccuracies were brought to its attention.”
In conclusion it is worth again reiterating that there are a number of steps an employer may take to limit any potential risks that could arise:
- First and foremost the reference must be a fair and accurate reflection of the individual’s employment with the employer. Therefore all information contained in the reference must be objective and any opinions given must be based on fact.
- References should only be given once the employee’s manager and supervisors have been questioned and the employee’s file has been examined. Conjecture or the opinions of those not directly in contact with the employee during their employment should not be included.
- Employees must have been aware during their employment of the performance appraisal system in operation. Inclusion of concerns about an employee’s performance should never be included in a reference unless these concerns were made clear to the employee during their employment. This also applies to any disciplinary and medical issues. While the basic fact of disciplinary issues and/or medical absences can be confirmed, no mention should be made of the details of these issues.
- Avoid all mention of sensitive personal information such as any of the nine discrimination grounds (i.e. race, gender, family status, marital/civil status, religion etc.). While a reference to any such issues may have been innocent and in no way intended to be discriminatory it could be the case that a potential employer would not award a position on this basis. As a result the previous employer could be held jointly liable for facilitating this discrimination.
- Preferably references should not be given out over the phone were questions such as, “would you rehire this person?” cannot be avoided.
- It should be remembered that an employee can request a copy of a reference through Data Protection legislation. In order to protect themselves employers should ensure references deal only with fact and avoid providing any potentially libellous opinions.
- Finally, the employer should have a reference policy in their employee handbook and all employees should be aware of its existence.
