1. Is there a legal obligation to provide a reference?

As a general rule of thumb, there is no absolute requirement on an employer to provide a written reference or a statement of employment to a former employee. However, the following issues are worth considering in this context:

• In limited cases, such an obligation can arise as an implied term of employment e.g. if an employer has agreed to provide references previously, this can establish an implied term through custom and practice.
• There could  also  be  an  issue  under  the  employment  equality legislation. In Gannon  v  Milford  Care  Centre,  the  Equality  Tribunal  found  that  the failure to provide a reference for a person who was on long term disability was less favourable treatment on the disability ground.
• In addition inferences could be drawn from a refusal to provide a reference which could also lead to a claim.

The issue of employee references becomes much more difficult when dealing with employees in regulated industries, for example, teachers, doctors and employees in the financial industry. In the UK, new rules were recently introduced with regard to the provision of references in the financial services industry. The rules were designed to prevent the recycling of individuals with poor conduct records amongst firms. Under the “regulatory reference” regime, regulated firms in the UK financial services sector now have a statutory duty to provide a reference in a prescribed format. There is no equivalent requirement in Ireland. Instead, regulated firms in Ireland are merely required to “make all reasonable efforts to obtain references from former employers” as part of the due diligence in the selection and appointment process for certain senior management posts. If the employer is unable to obtain a reference or references for whatever reason, it must record the steps which it has taken to obtain them. Most of the difficulties in practise in providing references in Ireland occur in regulated industries. The difficulties that can arise are demonstrated in the relatively recent decision in the UK Court of Appeal case of A.B. v. A Chief Constable. In that case, the UK High Court considered whether a senior public official was obliged by his duty to act with honesty and integrity to do something more than to give a standard basic reference to a prospective employer. In this case, A.B. was a senior officer with a UK police force. He applied for a job with a regulatory body which he was offered. He accepted the offer and resigned from the police force at which point his employer agreed to drop pending disciplinary proceedings concerning allegations of gross misconduct. The job offer was conditional on satisfactory references. The regulatory body made a reference request asking for information including A.B.'s reason for leaving, his absenteeism levels and any further relevant comments. The police force’s standard reference did not contain these details. It also carried a disclaimer stating it was not the force’s policy to provide any further information regarding an employee. When the Deputy Chief Constable of the police force later learned that only the standard reference had been provided, he thought it inappropriate in the circumstances. A.B. was told that it was proposed to send a further second reference to the regulatory body and was sent a draft which gave details of his absence and disciplinary record. A.B. served a notice under the UK Data Protection Act 1998 stating that to send the second reference would be unlawful and also issued private and public law claims to prevent the sending of such a reference. Mr. Justice Cranston in the High Court acknowledged that the first reference gave a misleading impression because it omitted mention of the disciplinary matters being brought against A.B. The court said that in this case there was no private law duty of care obliging the Chief Constable to send the second reference because of the stated policy to provide only basic information and the disclaimer of any assumption of responsibility in relation to the giving of the first reference. On the other hand, the court accepted that there was a more onerous public law duty on the Chief Constable to act with honesty and integrity not to give a standard reference. He was “prima facie under a duty to supply the regulatory body at the least with the information about disciplinary matters in the second reference.” The court held that where a basic template had been sent, in ordinary circumstances, the force would have been obliged to send the second reference which set out the disciplinary matters which had not been disclosed in the first reference. However, in this case, in ordering that the second reference could not be sent, what tipped “the balance of fairness” in A.B.’s favour was that he had resigned and requested the force to discontinue the disciplinary proceedings before knowing that the Chief Constable intended to send the second reference. If the police force had sent the second reference it would most likely have left him without employment and without the opportunity to refute the gross misconduct allegations. It would have been a breach of the relevant data protection legislation and would have undermined A.B.’s legitimate expectation that it was only the standard template reference that was to be sent. As is demonstrated by his case, the provision of a reference in the context of a regulated role can be a legal minefield. If your organisation has been asked for a reference or statement of employment in respect of a regulated role and the employee in question is or has been the subject of allegations of serious misconduct, legal advice should be sought before responding to, or refusing to provide, any such reference. This article first appeared as part of Legal-Island’s employment law update service. Find out more: www.legal-island.ie