A recent case serves as a cautionary warning about the risk of providing an employee a reference. In the 2024 High Court case of Simon Bennett v. Mitie Technical Facilities Management Limited the court confirmed the employer on this occasion was not negligent when he provided prospective employer a reference about an ex-employee.
Facts of The Case
The claimant was employed for 6 months at a facilities management company. He had issues with punctuality and using inappropriate language in the workplace. His manager held an informal meeting and spoke to him, but the manager had not escalated the conduct to HR for disciplinary action. The claimant later resigned.
A few years later, the claimant applied for a position with a new prospective employer, and he was offered the job subject to a satisfactory reference. The prospective employer contacted his earlier manager for a verbal reference. The former manager mentioned the punctuality issue and the use of inappropriate language in the workplace. He also told the prospective employers that it was up to them to make their own decision about employing the claimant. The prospective employer decided to withdraw the offer.
This resulted in the claimant suing the former employer for negligent misrepresentation due to the reference provided. He alleged they failed in their duty to take reasonable care to provide a fair reference.
His case was dismissed at the first instance and his appeal was also rejected. The courts found the reference to be fair and not misleading. The High Court held there was no duty of care to give a comprehensive reference and positive feedback about the claimant’s work. The employer was able to comment about his lateness and use of inappropriate language in the workplace.
What Action Should Employers Take?
First note each claim in negligent misrepresentation will be judged on the facts presented in the reference. Employers should have a HR policy about providing references. It would be advisable that the HR team should oversee the reference request rather than individual managers. Employers should keep correct records of incidents concerning employees conduct. The reference does not have to be comprehensive but should always be fair, correct and not misleading.
If you need any further advice and help, please do not hesitate to contact the Quest HR Advice Line on 01455 852028
