It's the law: Satisfactory references

Charities should include a clause in their job offers to avoid getting into difficulties.

It is common for contracts of employment to be offered subject to satisfactory references, but the question of what is satisfactory is likely to be subjective.

In Wishart v the National Association of Citizens Advice Bureaux, the Court of Appeal held that the question of what is satisfactory would be regarded as subjective only if the wording in the job offer were construed as meaning that references must be subjectively satisfactory to that particular employer.

In order to err on the side of caution, it is advisable for charities to include some wording to make it clear that a job will be offered only on the condition that references that are "satisfactory to us" are received.

Charities are not obliged to provide references for former employees. However, because the consequences of refusing or failing to do so are likely to be serious for an employee, the circumstances in which a refusal to supply a reference occurs will probably be rare, particularly as such a refusal could give rise to a claim for unlawful discrimination. Case law has found that a failure to provide references after termination has the potential to be discriminatory.

Charities should, however, be aware of the possible consequences of giving a reference, both in terms of the subject of the reference, who could file potential claims for defamation, discrimination and breach of implied trust and confidence, and the recipient, who could put in a claim around a negligent misstatement.

In the past, unfavourable references have been found to be racially discriminatory, and in one case it was found that an employer owed a duty of care to its former employee and that a reference given by it could constitute a negligent misstatement.

There is no duty on employers to provide full references. In Kidd v Axa Equity & Law Life Insurance Society, the High Court held that the duty of an employer in giving a reference extended only as far as not giving a false or inaccurate reference and ensuring that it was not misleading through selectivity of information or opinions.

- Emma Burrows is a partner and head of the employment group at Trowers & Hamlins solicitors.

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