Can employers get into hot water just for giving a job reference? In a word, yes

A recent UK decision highlights the pitfalls of taking the wrong approach.

By Ger Connolly Partner, Mason Hayes & Curran

A RECENT EMPLOYMENT Appeals Tribunal decision in the UK demonstrates the risk of employment references, both for those who issue them and those who rely on them.

With that decision in mind, I will review the risks associated with providing employment references and with seeking to withdraw a job offer on foot of a negative employment reference. I also explore the steps that organisations can take to protect themselves against adverse findings of discrimination, breach of contract or defamation.

In the UK case, Ms X suffered from a disability and had prolonged periods of absence throughout her employment with Company A. The company mentioned her absence in her employment reference and also commented that it felt she was unsuitable for the role with Company B. As a result, Company B withdrew the job offer it had made to Ms X.

The tribunal found both Company A and Company B were guilty of discrimination. Although the case was in the United Kingdom, had the same facts come before the Workplace Relations Commission in Ireland, a similar outcome may have resulted.

In Ireland, the Employment Equality Acts prohibit discrimination on nine grounds – age, civil status, disability, gender, family status, religious belief, race, sexual orientation and membership of the Traveller community. The protections from discrimination apply to employees, applicants for employment and independent contractors.

Employers need to be mindful of what they include in employment references, whether in writing or verbal. References can be a sensitive subject, particularly where the employee has left under unfavourable circumstances.

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Source: Shutterstock/baranq

No obligation

In Ireland there is no statutory obligation on an employer to issue an employment reference and many employers opt for a ‘statement of employment’ – which gives basic, objective details such as the employee’s name, term of employment, title and duties. Whilst this level of detail is unlikely to get the author into legal difficulty, it is of little value to a prospective employer.

There are various factors to consider when deciding whether to give employment references, and getting the balance right by being fair to the employee and prospective employer, whilst at the same time protecting your organisation, can be difficult.

If an employer wishes to disclose comprehensive, subjective details about an employee, it is important to be mindful that the details are in no way connected to the grounds of discrimination set out under the Acts.

It is also important that the employment reference is fair and accurate to ensure you are protected from a potential defamation claim. It is worth bearing in mind that employees and applicants can gain access to any personal data an organisation has relating to them under the Data Protection Acts.

Withdrawing offers

Dealing with the net question, can a prospective employer withdraw a job offer for an unsatisfactory reference? In short, the answer is yes, but the right is not unconditional.

When the reasons for the withdrawal are objective reasons, such as qualifications, technical ability or skills, and are not directly or indirectly associated with the nine protected grounds, then the prospective employer can withdraw a job offer. If it relates to a discriminatory ground, this will be more difficult.

In addition and depending on the circumstances of the case, the prospective employer may be under a contractual obligation to pay the employee the notice entitlement set out in the contract of employment.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

Ger Connolly is a partner in the employment law team at Mason Hayes & Curran.

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