Discrimination risk when providing references

Discrimination risk when providing references

The recent tribunal case of Mr P Mefful v Citizens Advice Merton and Lambeth serves as a reminder of the risks when giving references to prospective employers. The tribunal found that an employee was discriminated against by their former employer after the reference they gave painted a misleading picture of his past sickness absence.

Facts

Mr Mefful had worked for Citizens Advice for eight years before being made redundant in 2012. During that time he had taken two long periods of absence: one due to the grief and stress and another caused by constant shoulder pain and total hearing loss in his right ear.

After being made redundant, Mr Mefful bought claims for unfair dismissal and disability discrimination against Citizens Advice, the former of which succeeded and the latter is ongoing. When Mr Mefful was offered a job in 2015, his prospective employer requested a reference from Citizen’s Advice.

Citizen’s Advice gave a reference, the key details of which were:

  • It provided details of Mr Mefful’s sick days;
  • It answered ‘No’ to the question of whether they would re-employ him;
  • It did not answer the question explaining why they would not re-employ him; and
  • It did not answer any questions relating to his performance.

Shortly after receiving the reference from Citizens Advice, Mr Mefful’s prospective employer withdrew the offer because they considered his sickness absences to be disproportionate and they were influenced by the statement that Citizens Advice would not reemploy him. Mr Mefful brought claims of victimisation and discrimination arising from a disability against Citizen’s Advice.

Decision

The tribunal held that the reference discriminated against Mr Mefful, based primarily on the following:

  1. Although it was accepted that providing absence figures in the reference was reasonable in the circumstances, it found that the figures provided were inaccurate and significantly overstated. The decision also noted that no explanation was given of Mr Mefful’s disability and the impact this had on his absences;
  2. It found that the author of the reference had strong negative views about Mr Mefful because of his claims against Citizens Advice. Consequently, the tribunal found that the silences in the reference were intended to reflect Mr Mefful in a bad light and to be interpreted by his prospective employer as negative comments about his sickness absence; and
  3. The reference did not provide a balanced or fair picture of the claimant’s eight years of service with Citizens Advice.

Comment

The case is a reminder of the importance of taking care when giving references, particularly in respect of leavers who may have alleged or brought claims against their former employer.

Former employers sometimes find themselves in a conundrum when asked to provide a reference. They owe competing duties to both the former employee and the prospective employer and the consequences of providing a reference which is not fair, accurate and misleading can be costly.

It is for that reason that many employers have policies of providing only very basic information about a former employee’s employment, such as dates of employment and the role held. Employers who chose to provide more detailed references should always ensure they are fair, balanced and factually correct.

Contact our experts for further advice

Lloyd Davey

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