Legal Brief

Wednesday, 9th February 2011

Fiona Ormond Solicitor with MJ O'Connor Solicitors,
Confederation House, Cork Road, Waterford
051 355663 or email: formondatmjoc.ie

Employment Law: References: Do's and Dont's

Many employers are now giving "Statements of Employment" instead of the traditional reference given to the new or prospective employer of a former or present employee. A reason for this is that many employers fear legal liability attached to supplying references which may contain information which they are not is a position to substantiate or indeed either deliberately or by chance give an opinion.

Some employers are of the belief that they are not obliged to provide employees with a reference. Employers should exercise caution in this regard especially in circumstances where it is obvious that the employee may not meet basic requirements of recruitment because they have not a reference from their previous employer. In such instance it may be held that the withholding of the reference by the previous employer has denied the employee the job. An interesting UK case in this regard is that of Spring –v- Guardian Assurance in which Spring was dismissed from his position of sales director and office manager and sought employment with another insurance company. However, according to the rules laid down by the regulatory body the new employer was legally obliged to seek a reference. They declined to give the employee the job as a consequence of the reference received. The court found in the former employee's favour in his action for negligent misstatement, malicious falsehood and breach of contract. There are many industry sectors in Ireland where the requirement for a reference may apply and employers should be aware of this.

Employers should be aware that their failure to provide a reference or their provision of a reference showing the employee in a negative light could leave them to open to an action against them on the grounds of breach of contract, negligence, defamation, discrimination, a denial of the employee's constitutional right to earn a living and breach of data protection rights.

In providing a reference employers must ensure that the information they are giving is accurate This they can do by checking the employee's personnel file and with supervisors and managers of the employee. They should also ensure that they are clear on the distinction between opinion and fact. Employers should also be aware that under the Data Protection Acts employees have a right to all information relating to them either held in hard copy or on a computer including their personnel file. Also, while some information can be kept from employees, former and present on the basis that the person who supplied it did so believing it to be confidential, not all information can be withhold on the basis of titling it confidential. A high threshold of confidentiality must be met. Similarly caution should be used with disclaimers in that using them in supplying a reference may not exclude the employer from liability where the information supplied was incorrect or should have been within the employer's knowledge.

This article does not constitute legal advice.