Reference problems? Proving your loss …

Since the 1992 House of Lords decision in Spring -v- Guardian Assurance it's been well known that an employee can take legal action against the author of an unfair and misleading reference.

Larger employers are more likely to confine their references to basic information such as dates of employment and last job title.

However, in some sectors, there is an obligation to give greater detail about the fitness of a candidate for certain roles. This can apply to healthcare, teaching or financial services roles.

When an employer wishes or is compelled to draft a reference giving more detail, it is vital to ensure that it is accurate, and that it does not give a misleading impression overall. It should not mention uninvestigated allegations which the employee has not been allowed to dispute.

In order to take legal action for the loss of a job opportunity, a candidate will need to prove that the reference is misleading and that the unfair reference is (more likely than not) the main or only cause of the job being lost. He/she has to show that a real or substantial chance of a job has been lost due to the reference itself. This can be difficult for the average candidate who wants to be as open as possible about their past in interview.

If a candidate suspects that a former employer is likely to give an unfair reference, they often mention this in interview. They rightly wish to appear open and honest.

The problem here is that a prospective employer may never actually offer the job to the candidate at all. The candidate may have difficulty in proving that this was due to the mention of the possibly adverse reference.

Choosing between two otherwise equal candidates, with one being someone who confesses a potential reference problem and the other who has no such difficulties, the employer is likely to take the easy route and offer the job to the "cleanest" candidate.

Candidates sometimes find it difficult to accept legal advice not to mention the possibility of an adverse reference in interview.

If a claim is to be brought against the author of the negligent reference, it is very important to be able to demonstrate to the Court that the opportunity was lost because of the reference rather than due to all the imponderables which can apply to the recruitment process.

Where a job is offered subject to references, and then lost when the unfairly adverse reference is received, the claim for financial loss is far easier to prove. The candidate often just wants the reference to be corrected and sorted out, but the employer may ignore the problem until it is faced with a properly proven claim for financial losses. At this point, the negotiations can begin in earnest…