The Court of Appeal has handed down Judgment in the Case of Liverpool City Council v Jackson [2011] EWCA Civ 1068 concerning the provision of references by employers when allegations remain outstanding.
It is important to highlight various aspects of this case. First, it reviews previous authorities and a read of the Judgment is a handy way of getting up to speed on this area of employment law.
Second, it is important to highlight that this was a claim for damages arising out of the allegation by a former employee of the Council that a reference provided in relation to him had been provided negligently. The issues to be decided need to be seen in that legal context, which is not the usual territory of employment lawyers.
Finally, the most useful point is the practical application of this Judgment. Issues which arise following the end of the employment relationship are fraught with difficulty. From the employees perspective, they have no control over the actions taken by their former employer, rumours circulating, people looking to blame the employee that has left rather than acknowledge their own failings and most notably the manner with which the employee left or indeed the fact that the employee left could be said to influence the very fact that allegations are being made.
From the employer’s perspective, issues which arise after the employment relationship can be serious and require investigation, particularly if those allegations involve malpractice in some form. They may be faced with an ex employee who is not prepared to assist and have access to only some of the necessary information.
In the specific case, the Council had provided a reference but had not answered all of the questions asked of them. In addition, some doubts were placed on the reference relating to capability issues which were only identified following Mr Jackson’s departure.
At first instance, Mr Jackson was successful. However, the Court of Appeal allowed the appeal. It was held:
“In my judgment Liverpool cannot be criticised for providing a reference and cannot reasonably be criticised for including within it a cautionary remark based on allegations that had been made by three social workers themselves based on what four young people had independently said in at least one case supported by a parent. The account of these persons had not been tested and was certainly not being taken as true, but it was made clear on the telephone that the allegations had not been investigated. The judge accepted that the written reference was true and accurate; taken together, the reference and the subsequent telephone conversation were careful and, in my judgment, by no stretch of the argument unfair.” (per Leveson LJ para 36)
Therefore, the fact that the allegations were untested was identified. This is crucial. Had this not been identified, it would appear that the result may have been different. Of course, this is unsatisfactory to Mr Jackson, who was left in an invidious position, with little by way of remedy to rectify the situation.
