What’s the answer? References in cases of gross misconduct

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Chris Bonfiglioli gets legal guidance this week from Helen Badger, employment law expert, Browne Jacobson and Martin Brewer, a Partner with the employment team of Mills & Reeve on what kind of references have to be provided in cases where gross misconduct is the reason for dismissal.

The question:
What kind of references have to be given in cases of gross misconduct? For example if an ex-employee could present a danger to a future employer would you have to warn the future employer of this? Can you just give a date of service reference even if someone has been dismissed for something serious or does "duty of care" mean that you have an obligation to provide a new employer with information of this kind?

Chris Bonfiglioli

The answers:
Helen Badger, employment law expert, Browne Jacobson

There is no obligation for an employer to provide a reference for a former or current employee. The only obligation is to ensure that, where a reference is provided, it is a true, accurate and fair reflection. This is an obligation towards both the subject of the reference as well as the person or company who is requesting it.

Where an employee has been dismissed for gross misconduct, it is possible that a reference with no mention of this would breach the duty of care owed to the recipient. This will almost certainly be the case if the reference implies there was no particular issue with this employee, for example by commenting upon the employee's excellent timekeeping or relationships with colleagues.

However, a reference which only confirms the dates of employment, making no reference to their qualities, is unlikely to lead to any liability on you.

To be absolutely safe, you would be within your rights to include a sentence confirming that employment was summarily terminated on the grounds of gross misconduct, and leave the prospective employer to draw their own conclusions. Provided this information is true and accurate, there would be no breach of your duty of care to your former employee.

In some circumstances, there is likely to be a greater obligation on an employer to be honest about an employee's conduct to prospective employers. For example, where an employee in the care industry has been dismissed for abusing a client, there would be a greater onus on the employer to pass this information on.

Helen can be contacted at: [email protected]

Martin Brewer, is a Partner with the employment team of Mills & Reeve

To understand your responsibilities you need to consider a number of issues.

First, do you have an obligation to provide a reference at all? Some employments come with an express agreement that the employer will provide a reference. Alternatively the provision of a reference may be implied. This usually arises in sectors where it will be practically impossible for an employee to get another job without a reference (for example in financial services).

It may also be customary for you to provide a reference and if that is the case then you should provide one unless there is a compelling reason why not otherwise you could face a discrimination claim from the former employee (depending of course on the facts).

Assuming you do provide a reference, what is your obligation?

Your obligation is to provide a reference that is honest and accurate both to the ex-employee and to the prospective employer to whom you have, as you point out, a duty of care.

It is true that many employers simply give a basic reference setting out the dates of the employment. I have always been uncomfortable with this because it could leave the recipient of the reference with the impression that there were no problems. Thus if you were going to do this you ought to be up front and say that it is the company's policy only to give dates of employment and no positive or adverse inference should be drawn form this.

However, if normally you would give a full reference, then you should do so in every case, even gross misconduct. Thus you would give a full reference setting out good and bad points, explain that the employee was dismissed, the basic circumstances and, for balance you may want to explain that the employee maintained their innocence (if they did).

Martin can be contacted at: [email protected]

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