References: Where there are outstanding disciplinary issues

In Jackson v Liverpool City Council, the Court of Appeal found that a former employer was not in breach of its duty of care when it provided a reference which referred to uninvestigated allegations against their former employee. The reference was found to be true, fair and accurate in the circumstances and therefore Liverpool Council was not found to be negligent.

Mr Jackson, a social worker, was employed by Liverpool City Council. When he left the Liverpool to join Sefton Borough Council, he was given a satisfactory reference. A year later Mr Jackson applied for another role with Sefton and was required to provide references and in addition, a reply to written questions. For example Liverpool City Council was asked whether they would reemploy Mr Jackson. The Council was aware of recording and record keeping issues, which if proven and had Mr Jackson not left Liverpool, would have been the subject of a formal improvement plan. Therefore, Liverpool City Council explained to Sefton that they could not answer the relevant questions in the positive or the negative, as the allegations had not been investigated. Consequently Mr Jackson did not get the job and sued Liverpool for damages, claiming that they had been negligent.

The Court of Appeal considered that Liverpool City Council had not been negligent as they had been at pains to say that the allegations had not been investigated. Furthermore, they had explained that that this would have resulted in a performance improvement plan, rather than disciplinary action. Therefore the reference was true, fair and accurate.

What does this mean for employers?

There is no requirement to provide a reference or reply to a request for written answers (unless the employer is contractually bound to do so). However, this case demonstrates that where a reference is given, it is important that it is true, fair and accurate. If specifically asked about a performance or misconduct and the employer wishes to reply, the employer should disclose any proven performance or misconduct issues in such a way that no assumptions can be made. Where those allegations are uninvestigated this must also be disclosed, together with the potential sanction, if appropriate.