Just how careful does an employer need to be when writing a reference that contains negative opinions? A recent High Court case brings some much-needed clarity to the murky issue of what employers can and can not say when giving references.

Facts of the case

In the case of Hincks v Sense Network Ltd , Mr Hincks brought a claim of negligent misstatement against his former employer, Sense Network Ltd, after it gave a reference containing negative opinions that were based on the findings of an internal investigation into his conduct.

Mr Hincks argued that the underlying investigation was a sham and that expressing a negative opinion based on the investigation gave the wrong impression of him as an employee. According to his argument, if a negative opinion in a reference is based on an investigation, the referee must be satisfied that the original investigation was conducted fairly and properly.

The High Court’s decision

The Court did not agree with the suggestion that an employer giving a reference should delve into the procedural fairness of any previous investigations. It held that when basing an opinion on an investigation, a referee should take reasonable care to review and consider the underlying material, to ensure they understand the basis for the opinion. But, unless some sort of “red flag” raises questions on the earlier investigation, there is no need for a referee to examine its procedural fairness.

Comment

As this is an area where employers can incur liability, many are very wary of giving anything other than factual references stating dates of service, job title etc.. This was therefore a relatively rare example of a reference mentioning an internal investigation and casting what were interpreted as negative assertions about an individual. However, the case demonstrates that employers can lawfully express negative opinions providing the referee has carefully considered the underlying material.

Employees who feel they may not be treated fairly during an internal investigation may be better off negotiating an agreed exit which includes an agreed reference.

How can we help you?

Talk to one of our employment law specialists today if you have questions about references or need assistance with an internal investigation.