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If in doubt, say nowt!

Providing references is a minefield for employers. On the one hand, you owe a duty to the employee in question to ensure the information it contains is true, accurate and fair. Yet on the other hand, you owe a duty to the recipient.  This can cause problems for employers where the two conflict, particularly where there are issues regarding sickness absence or disciplinary matters.

This was highlighted in a recent Employment Tribunal case.

Mefful v Citizens Advice Merton and Lambeth Limited

Mr Mefful worked for Citizens Advice Merton and Lambeth Limited (“CAB”) as a Specialist Services Manager from May 2004 until 2012. During his employment, Mr Mefful had two significant periods of absence: the first for a period of 2 months due to grief and stress after his partner lost a baby, and the second in 2012 for 63 days when he suffered with severe pain to his shoulder, sensorineural hearing loss and vertigo (an Employment Tribunal confirmed he was suffering from a disability under the Equality Act 2010).

Mr Mefful was made redundant in 2012.  At that time, CAB told him that they would be pleased to provide him with a reference in the future. Following his dismissal he made a separate claim for unfair dismissal and disability discrimination. CAB conceded that the dismissal was unfair but the disability discrimination claim is ongoing.

In 2015, Mr Mefful applied for the role of Welfare Benefits Advisor at One Housing Group Limited (“OHG”).  He was interviewed and offered the position, which he accepted.  CAB was approached for a reference.  This was eventually provided after some delay.

In the reference, CAB answered “no” to the question as to whether it would re-employ Mr Mefful.  This was later confirmed to be on the basis of his sickness absence record, however this was not stated on the reference.  Section 2 of the reference related to performance details and job description, in which CAB was asked to fill in 10 boxes asking for performance details. The boxes were not completed, instead the words “unable to complete due to not having not work (sic) with Mr. Mefful in a line management capacity” appearedThis response was also given to the question of how suitable they felt he would be for the position.

The section which asked whether there was any reason why the new employer should not appoint Mr Mefful was left blank.  It also gave inaccurate information relating to Mr Mefful’s sickness absence.  After receiving the reference, the job offer was withdrawn.

Mr Mefful brought claims for victimisation and discrimination arising from a disability on the basis of the reference provided by CAB.

Decision

The Employment Tribunal (ET) found that CAB knowingly conveyed the impression to OHG that it would not re-employ Mr Mefful due to his sickness absence.  It said that this was unfavourable treatment because of something arising from a disability, namely Mr Mefful’s absences in 2012.

It found that the failure to provide OHG with accurate information regarding Mr Mefful placed him at a detriment.  It also found that he had done a protected act by bringing a disability discrimination claim against CAB.  The burden of proof then moved to the CAB to show that the detrimental treatment had nothing to do with the fact that he had brought proceedings against it. It failed to do so and as such Mr Mefful’s claim for victimisation also succeeded.

The ET held that CAB failed to provide any favourable information about Mr Mefful personally or about his performance. This amounted to a detriment and created what appeared to be an entirely false and misleading impression of his successful 8 year career with the CAB.  The failure to respond to questions honestly and objectively placed him at a disadvantage as it conveyed a negative impression of his career and resulted in the job offer being withdrawn. The reference was not honest, fair or accurate and the only facts entered on the form were highly prejudicial to Mr Mefful.

The ET found as a fact that CAB was aware of his disability yet the reasons given for the way the reference was completed were due to his sickness absence.  It concluded that disability related absences formed a significant proportion of the absences relied upon and, the information was significantly overstated.  Therefore Mr Mefful was treated unfavourably because of something arising in consequence of his disability, namely his disability related sickness absences. CAB failed to show that its conduct was a proportionate means of achieving a legitimate aim and therefore his claim for discrimination also succeeded.

Comment

This case serves as a reminder to employers that giving references, either good or bad, can cause problems for them. If they give an unduly positive reference in respect of an employee that turns out to be unsatisfactory, it may breach its duty to the recipient. If it gives a negative reference, it could breach its duties to the employee, and may end up in hot water particularly if sickness absence is mentioned.

This also causes a problem for the recipient as relying upon a discriminatory reference, for example by withdrawing a job offer, could in itself be discriminatory.

For this reason, unless there is an obligation to do otherwise, our advice is to keep references short, factual and basic. They should include no more than dates of employment and job titles, and of course a disclaimer! If you have to go further, make sure everything is true and none of the content is discriminatory!

If you have any queries regarding references or any other HR queries please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.

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