Factual References

Employers owe ex-employees a duty of care when providing references, so they must be true, accurate and fair. In Jackson v Liverpool City Council, the Court of Appeal said that factual accuracy was a central requirement of the reference, whereas fairness related to the nuances or innuendo which might be drawn from the facts.

Basic facts

Mr Jackson, a social worker with Liverpool City Council for 12 years, left in September 2007 to work for Sefton Council. He received a satisfactory reference from his then manager. A year later he applied for another job with Sefton that also required references.

This time, a different manager provided the Liverpool Council reference, which raised some concerns about his record keeping. The manager said these only came to light after he left Liverpool Council and would (if proven) have resulted in a formal improvement plan, had he stayed on.

She also said, in a telephone call to Sefton, that she could not answer the other questions they had asked about him as part of the reference "in either a positive or negative manner" as the allegations had not been investigated formally.

Mr Jackson did not get the job and remained unemployed for about a year before finding another post with similar earnings. He brought a claim for damages against Liverpool.

County Court decision

The judge held that although the reference was true and accurate, it was not fair because “it carried with it an unanswered, uninvestigated, unparticularised, unspecified allegation implying he was unsatisfactory for employment”.

Mr Jackson was not given the opportunity to refute or answer the concerns raised, although they were serious enough to result in the job offer being withdrawn.

Court of Appeal decision

The Court of Appeal, however, allowed the appeal, saying that the central requirement of the reference, according to the decision of the Supreme Court in Spring v Guardian Assurance plc and ors, was factual accuracy.

Fairness, on the other hand, according to the decision in Bartholomew v London Borough of Hackney, “related to the nuances or innuendo which might be drawn from the factual assertions”.

The county court judge had been wrong, therefore, to consider fairness as some “form of some procedural mechanism which might permit the ex-employee to challenge an adverse opinion”.

The reference provided by Liverpool was both accurate and fair and the Court could not see how the council could have answered the questions posed by the reference without identifying the concerns that it had. When the manager told Sefton on the phone that she was not in a position to do so “in either a positive or a negative manner”, it was open to them to ask Mr Jackson for his view.

It concluded that Liverpool could not be criticised for providing a reference which included a cautionary remark based on allegations made about Mr Jackson’s record keeping. Liverpool had made clear to Sefton that it could not say whether the allegations were true as they had not been investigated.

Taken together, the reference and the subsequent telephone conversation were careful and “by no stretch of the argument unfair”.

It also said that the council should not be criticised for providing a reference, because a refusal would have been likely to cause Sefton even more serious adverse inferences and withdraw the offer of employment.