• Tribunal win for man whose former employer provided discriminatory references

  • 16 May 2017
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Case is a reminder that giving references is fraught with danger, say legal experts  

Employers are being urged to take extra care with their references, after a tribunal ruled that a man had been discriminated against after his ex-employer made comments linked to his sickness absence in a reference.

Mr P Mefful claimed he suffered victimisation and disability discrimination after his former employer, Citizens Advice Merton & Lambeth, where he worked from from 2004 until he was made redundant in 2012, gave him a reference that lost him a job offer.

During the course of his employment, Mefful had two lengthy periods of absence – one in 2009 and 2010 after he and his partner lost a baby, and a further stint in 2012 for shoulder pain and hearing loss in his right ear.

After being made redundant, Mefful brought a separate case, arguing that his dismissal was unfair and he was discriminated against because of his disability. Citizens Advice Merton & Lambeth has since conceded that the dismissal was unfair, but the disability discrimination claim is ongoing.

After a three-year period of unemployment, Mefful was offered a job in 2015 and his former employer was approached for a reference. However, after receiving the reference, the job offer was withdrawn.

In the reference, Citizens Advice Merton & Lambeth noted it would not re-employ Mefful, with its then-chief executive, Ms James, later explaining at tribunal that this comment was linked to his sickness absence.

However, the tribunal found that the employer’s records on Mefful’s absences were overestimated to a “substantial degree”, and therefore his potential employer had been provided with inaccurate figures.

Mefful also provided the tribunal with evidence that suggested he had performed well in his role, which was not challenged during cross-examination.

Citizens Advice Merton & Lambeth contended that, even though the reference did comment on Mefful’s sickness absence, it was “true, accurate and fair” and did not arise from discrimination or the earlier tribunal he had brought.

However, the tribunal ruled that the organisation had “failed to provide any favourable information about [Mefful] personally or about his performance… This amounted to a detriment and it created what appeared to be an entirely false and misleading impression of his successful eight-year career.”

Karen Jackson, managing director at discrimination law firm didlaw, told People Management that the case was a stark reminder that employers can still be found liable after employment has ceased. “The giving of references is fraught with danger for employers,” said Jackson. “Adopting a policy of confirming only dates of employment and role held should avoid liability.

“If employers are compelled to provide more information they must be able to show that it is factually correct… In relation to references there is an old adage that serves well: if you can't say anything good, it is better to say nothing at all.”

Naeema Choudry, employment partner at Eversheds Sutherland, commented: “This case represents a perennial problem for employers – how much to put in a reference, especially if there are negative aspects. Even so, the underlying principle in all cases remains that any reference must be fair and factual.”

Keely Rushmore, senior associate in the employment department at SA Law, said: “Although this is an employment tribunal decision and therefore not strictly binding, this case is a reminder of the need to prepare references carefully and objectively, ensuring that they are both balanced and accurate, particularly where the subject of the reference has brought discrimination proceedings.”

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  • It really aggravates me when lawyers advise restricting references only to dates employed and role held. Yes this gives you the greatest protection from claims but I think makes references hardly worth the paper they are written on. A reference, vetted by HR, can easily say what is good and bad about an employee as long as that information is factually correct and can be backed up. It pains me when I have to write a reference for an excellent employee and can only state the dates of employment and their role - I would love to be able to sing the praises of an such an employee. Similarly I would love to be able to truthfully warn a potential new employer about those less than ideal candidates, otherwise they are never held accountable for their poor performance, attendance or disciplinary record. Fear of litigation makes references a virtually pointless exercise and this need not be the case.