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Risky References

Background

Generally, there is no legal obligation on an employer to provide a reference for an employee or ex-employee and employers are therefore entitled to refuse to provide a reference. However, if the employer does provide a reference, then it owes the former employee a duty to take reasonable care to ensure the information it contains is true, accurate and fair, and in turn does not give a misleading impression. The recent Court of Appeal decision in Abdel-Khalek v Ali” has confirmed the legal duties which apply to those offering references.

The facts

In this case, Mr Abdel-Khalek was a surgeon, who had received acceptable references from referees specified on his application. However, one of the doctors with the new employer contacted an acquaintance, Mr Ali who had previously worked with Mr Abdel-Khalek. As a result, concerns were raised and Mr Abdel-Khalek’s offer of employment was withdrawn. Mr Ali had indicated that there were half a dozen patients of Mr Abdel-Khalek, who had suffered complications during the time he worked with him and generally gave the impression that the complication rate was higher than would be expected. This lead to the withdrawal of the offer of employment.

Mr Abdel-Khalek sued alleging that the adverse statements made about him were incorrect and provided negligently. The Court found that the number of patients suffering complications had been exaggerated. However, it was also found that Mr Abdel-Khalek had failed to prove there was not a higher than expected level of complications. Mr Ali’s suggestions were found to not be misstatements, because it was a general concern regarding the greater than expected complication rate that led to the offer being withdrawn, rather than the specific numbers. It was found that the other errors of detail were not relevant to the potential employer’s decision to withdraw the offer. Mr Ali therefore, escaped any liability.

Summary

This case helpfully confirms that mistakes in the detail of a reference will not necessarily lead to liability. If the overall impression offered is generally accurate, and it is that impression which is then relied upon. However, relying on this rule is a risky strategy as employers may still be held vicariously liable if a reference has been given negligently. It is therefore advisable for employers to have a policy in place regarding which members of the management team can give a reference, and guidance on the format and contents of such a reference.

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