Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
The recent Oxfam scandal has highlighted the unsatisfactory practice that has developed across the HR world in respect of the giving of references. It appears that significant issues of misconduct have not been disclosed by Oxfam, but many in HR will have been involved in agreeing a bland, heavily caveated reference where the reality is the referee would not re-employ. So what alternatives does an employer have?
Don’t give any reference?
Employers across the country are not legally obliged to comply with reference requests and given there is a duty of care to both the subject of the reference and the recipient, some employers could be forgiven for thinking they will no longer provide references at all. Such an approach will be counter-productive. A reference is a crucial tool for any prospective employer and therefore every organisation needs to play its part. Many of our clients operate in sectors where the need for satisfactory references from the last employer will be crucial in establishing regulatory compliance.
Use a disclaimer?
If a clear disclaimer is used, case law has made clear there is no liability to the recipient of the reference. So in Oxfam’s case, if the reference for their former employee alleged to have been involved in sexual misconduct (who then went to work with CAFOD) failed to mention any concerns, a simple disclaimer will have prevented any liability arising. So it works legally but in our view it is no longer a satisfactory way of safeguarding the vulnerable.
A warts and all reference?
An employer needs to take reasonable care to ensure that the information contained in a reference is true, accurate and fair and does not give a misleading impression (positive or negative). There is no obligation to provide detail or for it to be comprehensive. Given that claims may arise from the subject of the reference such as victimisation claims, whistleblowing and defamation, employers understandably have shied away from going into detail. Providing more detailed references which set out the fact that an employee has been under investigation at the point when they left their employment is also risky. How does an Employer provide the necessary balance? For example, should they detail the fact that the employee had an exemplary performance record but was then suspended over potential allegations of abuse? It might be balanced from the reference givers perspective but it is the end of the job opportunity for the subject. In some case that may be unfair on them. Where conclusions have been that someone should be dismissed for misconduct, it is clear that should be mentioned in the reference, but where the allegations have not been heard at a fair disciplinary hearing, a genuinely transparent and balanced reference will be difficult to implement (unless the wording is agreed).
An employee disclosure?
Some employers ask prospective employees during the recruitment process to disclose the reasons for leaving their former employment and to warrant that they were not under investigation for or subject to any disciplinary sanction relation to their conduct at the time of their dismissal (and if they were to provide detail). We believe such an approach should become a standard part of recruitment practice and that the prospective employee should then be required to consent to the prospective employer approaching the last employer, for them to confirm or deny the accuracy of the warranty. Such an approach leaves the reference giver without having to strike the difficult balance where there are untested allegations and forces the employee to give an honest and open account. To work well it needs to become a sector-wide practice with former employers agreeing to respond. This is something we will encourage in our key sectors.
In agreeing terms of departure for staff under investigation, the reference terms can become a crucial sticking point. Sadly, a standard form reference with a disclaimer will be the easy option. We believe employers giving such references should now make clear that if they are asked about the existence of live allegations or findings of misconduct, the fact that such allegations or misconduct exists will be disclosed.
We hope that this article will stimulate a change in practice to enable a more open flow of information about allegations of misconduct to safeguard the vulnerable whilst protecting an individual from being unfairly “blacklisted”.
For more information
If you have any questions about the issues raised in this article, please get in touch with Matthew Wort.
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