When entering into settlement agreements with employees who leave amidst disciplinary issues, a major incentive for the employee can be an agreed employment reference. The High Court has recently provided some useful clarification on the limitations of agreeing references in circumstances where the employer is subject to a duty to make safeguarding reports; and the extent of employers’ duties towards employees when making such reports.
The case of Mr Jean Dominique Melik v. Thurrock Borough Council  concerned a teacher, Mr Melik, who worked for a school controlled by Thurrock borough council. A number of allegations were made about Mr Melik relating to him using force to restrain or control pupils, although only the last allegation resulted in a formal sanction, in the shape of a final warning in September 2008.
Negotiations took place, and the parties entered into a settlement agreement. This included a clause saying that, if requested by any third party, the school would give an employment reference making mention only of the September 2008 final warning.
After his employment ended, the school, in compliance with its safeguarding obligations, disclosed to the police a chronology of the complaints made about Mr Melik, which included even those complaints that had resulted in no disciplinary action. The police added this chronology to Mr Melik’s enhanced criminal record certificate and, consequently, Mr Melik’s offer of employment with a new employer was withdrawn. Mr Melik sued, claiming that the school had breached the agreed reference clause and had been negligent in providing an unfiltered chronology of allegations to the police.
The High Court dismissed Mr Melik’s claims. The key findings were that where an employer is under a statutory duty to make safeguarding reports:
1. It is not open to the employer and the employee to agree otherwise. A clause purporting to prevent safeguarding disclosures will be void.
2. The court was not prepared to impose a duty of care on a supplier of information to police, as this would discourage those who would in good faith provide assistance to the police on safeguarding issues.
Why is this case important for charities?
In many misconduct cases involving charities which provide care to vulnerable groups such as children and the elderly, there will arise a duty to make safeguarding reports. In some cases - particularly where the conduct is minor or there is a risk that an employee will bring a tribunal claim - it may seem attractive, in order to secure a settlement, to offer the employee an agreed reference making no mention of the misconduct.
While this may be acceptable as far as employment references to other employers are concerned (subject to the duty not to mislead), this should never be the case as far as safeguarding reports are concerned. Where, during settlement negotiations, employees or their union representatives suggest that the making of safeguarding reports will present a bar to settlement, this is a good case to refer them to in order to show that any clause purporting to prevent such reports will be unlawful.
Full and frank safeguarding disclosures are so important that, provided the disclosures are made in good faith, employers can be quite relaxed about the information they provide to the authorities.
Mr Melik has been given leave to appeal.
Laurence O'Neill is an associate solicitor at Morrisons Solicitors