Balancing employer’s duties with employee’s rights

14 July 2014

In AB v A Chief Constable, the High Court considered a case where, when giving a reference, the police force in question (‘the old employer’) had provided only a ‘standard’ reference, simply confirming the dates that the employee had worked for it; that it was not their policy to provide any further information and that the reference was given without liability.

The court held that the old employer should not send a further reference to the new employer, advising the new employer of the employee's extended absence record and of unproven disciplinary allegations outstanding against him at the time of his departure.

The court confirmed that the starting point in such cases is that, when giving a reference, the old employer owes a duty of care to both the new employer and the employee to exercise reasonable care and give a reference which is true, accurate and fair.

In this case, because the old employer was a police force, it would ordinarily have had an additional public law duty to provide information concerning the disciplinary matter to the new employer. However, the employee had relied on the undertaking given to him by a senior officer that only astandard’ reference would be provided. The employee therefore had a legitimate expectation that the Force would act in a particular way and it would be wrong for a further reference to be provided.

Points to note:

  • It is interesting to note that the court considered that giving a ‘standard’ reference will usually be enough to satisfy the duty of care. It was only because the police force employer was under an additional public law duty that it would ordinarily have been legally bound to send the second reference.

  • The court considered the impact of the Data Protection Act on the giving of references. Confirming dates and length of service does not amount to ‘processing personal data’ on an employee. However, the employee’s illness record would amount to ‘sensitive personal data’. Whether his disciplinary record should be disclosed would depend on whether it was ‘fair’ to do so. In the particular circumstances of this case, where the employee had been promised that no further reference would be given, it would not be fair for the employer to send the second reference.

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