We have just received a solicitor’s letter saying that we are responsible for something that has happened to an employee who left us five years ago. We gave them a good reference when they left and would have done the same if we had received a written reference from a new employer. The letter alleges that his line manager responded to a verbal reference request by saying that there were some serious reservations about his ability and conduct, so his job offer was withdrawn. We have checked and this did happen, but surely we cannot be responsible for someone after all this time?
Oh yes you can, at least that is what a recent case on which the above facts are loosely based has held. It has been accepted for some years that providing a negative reference can amount to a negligent misstatement i.e. a breach of duty of care. Emails or conversations may not be intended to be a formal reference but the Courts can treat it as such. The subsequent years do not weaken the responsibility.
You would be well advised to settle on the best terms that you can negotiate especially as the ex-employee could possibly also pursue claims potentially for:
defamation
malicious falsehood
victimisation
loss of earnings from having lost the job
Make sure your staff do not make statements about ex-employees, at least unless those comments are true and can be shown to be true. You should also ensure there are clear guidelines for managers on both the process for providing references, the content and who is authorised to provide them.
The guidance provided in this article is just that – guidance. It is not legal advice as every case depends upon the facts. The law is forever changing and you need to keep up with these changes to ensure that you are behaving in the correct way.
Before you take any action make sure that you know what you are doing, or call us for proper advice.
