The practice of providing employment references has undergone radical changes. With the intensification of litigation, many employers have become wary of supplying detailed references, so many employers now adopt a policy of providing only the most basic information – dates of employment, salary and title. However, this strategy can in itself cause problems both for the supplier of the reference and its recipient.

Defamation

Even a basic reference could land you with a claim for defamation, but there are a number of defences you can use:

* The most potent defence is truth – a claim for defamation cannot be upheld if the truth of the allegation is established.

* Consent – if the employee had knowingly and voluntarily signed a release authorising the employer to provide a reference.

* Qualified privilege – if the author of the reference believed that the information was true when it was given, that the information served a legitimate business service, and that it was communicated only to an appropriate recipient who had a genuine interest in receiving it, you should be safe.

A duty of care

A House of Lords ruling means that the author of a reference owes a duty of care to the person about whom it is written, reinforcing the responsibility of an employer to give an accurate and fair reference. However, this exposes employers to potential claims for discrimination if an employer refuses to give a reference on grounds of race, sex, disability or previous legal action against the employer. The House of Lords rulings do not require a reference to be full and comprehensive, but in the current atmosphere of discrimination litigation even the bare facts can be construed as discriminatory – for example, stating a high frequency of sick leave can be seen as contravening the Disability Discrimination Act if the absences are not put into context.

An employer can also be sued for disparate treatment if a reference is refused or truncated when this is not usual company policy.

Negligent referral

References have taken on a new significance with the rise of workplace violence. Employers can now be sued for negligent misrepresentation or negligent referral if they fail to disclose behaviour that is later linked to an incident at the new workplace.

This can cause further problems for employers writing references when allegations are unproven, leaving the author with the dilemma of whether to expose themselves to a claim for defamation or risk a future charge of negligent referral.

Negligent hiring

This is a relatively new legal approach which could bring about further changes to the way in which references are given and received. Negligent hiring puts the onus on the hiring party to carry out adequate background checks on potential employees, based on the common law concept that an employer is responsible for the safety of its employees, customers and visitors. This is an attempt to both alleviate the pressure from authors of references and encourage employers to seek fuller and more informative references.
Providers and recipients of references are therefore facing a growing quandary. It’s increasingly necessary for employers to adjust policies for giving and taking references to take into account not only their own need to avoid the minefield of litigation, but also the need of the business community to work towards a more open and informative model for reference provision.

References which supply only the factual details of an employee’s tenure no longer provide satisfactory protection from litigation, or from actual harm, for either side.

Contributor: Alexandra Kelly, director, Powerchex