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The danger of what we say in references

I will be honest! I am not specially a lover of written references. Rarely do they say something that a good interviewer should not be able to glean from a robust interview or some other fact finding mission. Often, references are over the top and overstate an individual’s calibre and quality, when actually the person is okay, but probably no more. Sometimes, they might give a small clue but recruitment processes have become so process’y and routine so as not to notice or read between a line when a big hint is being given! At first, I resisted those now more common place bland references that state designation and dates of employment only. But now I give advice that little more than that is appropriate and lays the provider open to all manner of complaint and challenge.

My attention is drawn to the case of Meffull v Citizens Advice Merton and Lambeth. Not yet a case in the EAT but probably may be shortly! At the moment, it is a straightforward ET case about which the outcome suggests that employers need to be wary about the things that are stated, implied or omitted from references.

When I first heard about the case, I immediately thought about how a CAB could get it wrong! After all, aren’t they the givers of good homely advice to all and sundry? Well, it seems that their credentials may not be all that they are cracked up to be and they have fallen foul of an ET Chair who thought that they acted improperly. And they did!

So what is the case about? Well, the ET ruled that Mefful was discriminated against after his ex-employer, CAB Merton and Lambeth, made comments in a reference linked to sickness absence. In particular, Mefful claimed that he suffered victimisation and disability discrimination after his former employer whom redundant-ed him in 2012, provided a reference that subsequently lost him a job offer. During the course of his employment, Mefful had two lengthy periods of absence – one after he and his partner lost a baby, and a second period in 2012 in respect of shoulder pain and hearing loss in his right ear.

After being made redundant, Mefful argued that his dismissal was unfair and he was discriminated against because of his disability. After a three-year period of unemployment, he was offered a job in 2015 and the CAB Merton and Lambeth was approached by the new Employer for a reference. After receiving the reference, the new Employer withdrew the job offer. In the reference provided, Citizens Advice Merton & Lambeth commented that they would not re-employ Mefful, and explained at the ET that this was linked to a poor sickness absence. However, the tribunal disagreed and instead found that the Employer’s records on Mefful’s were overestimated by a “substantial degree”, and therefore his potential Employer had been provided with inaccurate information.

Rather, Mefful provided the ET with evidence that suggested that he had performed well - a matter that was not challenged during cross-examination. Citizens Advice Merton & Lambeth contended that even though the reference commented on Mefful’s sickness absence, it was “true, accurate and fair” and did not arise from discrimination.  

However, the tribunal ruled that the organisation had “failed to provide any favourable information about Mr. Meffull personally or about his performance. This amounted to a detriment and created what appeared to be an entirely false and misleading impression of his eight-year career.”
This begs a big question about references for Employers. In short, my advice is not to get caught up in giving an opinion about something when it is not seemingly backed up by hard evidence. References must be truthful. And even when they are, be careful to provide information in the round and create balance in what is stated rather than a misleading and disproportionate assessment. To be frank, my advice is to say nowt! Why take a risk? Why state something that is so obviously accountable and potentially questionable when you do not need to do so.

After all, if you accept my view that references have exceptionally limited value, why create an unnecessary exposure and risk to both you as the writer of a reference and to your organisation.
There is an old adage worthy of recall -  if you can't say anything good, it is better to say nothing at all. Employers might want to remember that the next time that a seemingly harmless reference request is received.

Martin Tiplady
16 May 2017

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