Question
I have been telephoned for a reference by the new employer of an ex-employee and asked questions about him 'off the record'. Can I be more frank than I might otherwise be in writing?
Answer
There is no reason an employer would not be liable for false or misleading statements, given as part of an oral request for a reference, in the same way as they would if they had supplied the statement in writing. The difference is that such statements are much harder to prove and therefore it would be more difficult for an ex-employee to take action. However, you do need to take care. There is a tendency when giving oral references, or indeed providing information by email, to lower one's guard and a chatty conversation can lead to sloppy, fallacious and even untrue statements being made. This happened in a recent case called McKie v Swindon College, albeit such comments were provided in response to an email. In that case the court held that the same duty of care to provide a reference that was factually true and not misleading existed. Given that the loss to the ex-employee was foreseeable, he was able to claim damages from his ex-employer. All organisations should decide what their policy is to providing references, including oral references if they are requested, so that there is clear guidance to managers as to what they can or cannot do.
If you would like to know more, please contact Tony Hyams-Parish, Head of Employment, in confidence and without obligation by emailing Tony or by calling him on 08450 990045, or speak to your usual contact in the Employment Team.
This answer is provided for information only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from taking any action as a result of the contents of this article.
May 2011
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