Employment reference for policeman could not include details of pending disciplinary allegations

AB v A Chief Constable | High Court | June 2014

The basic legal position is that when an employer gives an employment reference a duty of care is owed both to the recipient and to the employee (or ex-employee). This duty requires the employer to exercise reasonable care and skill to ensure the reference that is provided is true, accurate, fair and not misleading. If the reference is inaccurate the employer may be sued for negligent misstatement by the recipient. The employee may also sue and claim damages suffered as a result of the reference. This is why so many employers tend to provide simple factual references and include a disclaimer in the reference to seek any liability.

AB was gay and a senior policeman who was facing serious gross misconduct allegations. He had also had a long period on sick leave. Eventually AB resigned from his post claiming he had been the victim of institutional discrimination including victimisation because of his sexual orientation and the misconduct allegations were an example.

AB secured new employment with a regulatory body conditional upon an employment reference. AB checked and was informed that this would be in the standard template format as was the usual practice of the force. Thus a standard template reference was given about AB by a senior police officer. It did not refer to the outstanding disciplinary proceedings or to AB’s sickness absence. However, when the Chief Constable learnt about the reference given about AB he wanted to send a further reference to the new employer giving these missing details. AB applied to the High Court seeking to stop the publication of this second reference.

The Chief Constable argued that he had both a private and public duty to ensure the original reference given about AB was corrected because it was incomplete and misleading.

AB argued that if the “corrected” reference was sent it would be a breach of the agreement he had with the force that only a template reference would be sent and there would also be a breach of the Data Protection Act .

The High Court stressed that ordinarily the Chief Constable had a statutory and public law duty to ensure his forces’ employment references were full, frank and not misleading. The judge agreed that this meant that at the very least the new employer should have been told about the length of sickness absence and the pending disciplinary allegations. The force should not have given the standard template reference about AB because it was misleading and therefore inaccurate.

The above said, the High Court judge went on to hold that the second reference must not be sent because under public law principles AB had a legitimate expectation that the force would only send out a template based employer reference letter. For the force to breach this expectation would have meant acting in breach of the first data protection principle of the Data Protection Act 1998 (‘DPA’). This would have made sending the second reference unfair and unlawful. The judge said that AB’s legitimate expectation outweighed the public interest in the force providing a full and frank reference.

The High Court held that the Chief Constable was required to exercise his public law duties by protecting AB’s legitimate expectation that a standard employer reference letter would be provided.

The Court explained that the information that would have been sent in the second reference was personal data under the DPA and the Chief Constable was under a duty to process that data fairly and lawfully. This would have been breached if the legitimate expectation was not observed.

The problem for some employers with this decision is that AB’s new employer relied on the standard reference and has employed AB based on its misleading information. Can this be right given AB’s employment history, including the fact that he resigned just before he had to attend his disciplinary hearing? Has the reliance on the Data Protection Act correctly protected the interests of AB’s new employer? Many would argue with some justification the answer is ‘no’.

During the case it became clear that AB had not disclosed details about his sickness absence or the disciplinary allegations to his new employer. So between AB and the High Court’s decision the new employer is none the wiser. Should we be concerned that AB is now working for a regulator who is completely unaware of AB’s employment track record? I think we should be.

In practice, one way of reducing the risk of employing someone like AB without knowing more about his or her employment history is to consider:

• Using a comprehensive job application form.
• Including appropriate declarations on the application form relating to past employment events including disciplinary allegations.
• Making the job offer subject to the receipt of a full and comprehensive employment reference from the last employer.

We can help public sector employers consider the balancing duties and interests when providing or seeking employer references as part of the recruitment exercise for senior post holders. Please contact Quantrills to discuss how we can help your organisation with this exercise.