Why Employers Must Be Careful What They Include in References

The case of AB v Chief Constable has highlighted the potential risks involved for employers, should they say a little too much in a reference.

AB, the claimant, found new employment and required a reference from his previous employer, the police force. Previous to this, he had served with the police for 24 years. Before resigning, however, disciplinary proceedings had been instigated against him but never completed.

A standardised, factual reference had already been supplied to the recipient by the HR department. In spite of that, the Chief Constable subsequently made the decision to write a second, far more detailed reference, which included the uncompleted disciplinary action, and it was this conduct, which the High Court deemed an "unfair" use of personal data.

Lawyers acting for the police argued that the police had a positive duty to inform AB's new employer that misleading information had been given in the first reference. The High Court rejected this argument, stating that data protection and its duty towards AB trumped the duty to give the second more detailed reference.

The 'unfairness' was due to the fact that AB resigned, which consequently stopped the disciplinary proceedings, in the knowledge that only the first reference would be sent. The police force, by then continuing to send the second reference, had effectively denied the claimant his right to respond to the allegations against him, meaning disclosing these details to his prospective employer was substantially unfair.

For employers, the key point to remember is that you owe a duty of care to both the future employer who is receiving the reference, but also your former employee who is the subject of the reference. When composing a reference it should be noted that statements, which could potentially be personally sensitive, including details about sickness absence, may not comply with data protection principles.

In summary, employers should not cite any discontinued or incomplete disciplinary matters in a reference, and also remember that policy on references should be applied to all employees equally.

Employment Reference Lawyers in Aberdeen

Whether you are an employer or employee in need of advice and assistance in relation to an employment reference, Employment Law Aberdeen's specialist employment solicitors can help. To get in touch, please call 01224 370 208. You can also complete our online enquiry form.