Not all poorly performing employees have to be managed out of a business by an employer some leave of their own accord. When they do, their appalling timekeeping and dreadful attitude are usually quickly forgotten. But it is probably inevitable that they will move on to worry another unsuspecting employer.
If you were unknowingly about to hire a ’bad apple’ and someone else had information that could be useful, you would probably be glad if they disclosed it. But in this situation, would it be wise to spill the beans about what you know and tip the potential employer off about their candidate’s work history?
The leading case in this is Spring v Guardian Assurance Plc 1994. This case said that an employer owes an ex-employee a duty of care to provide a reference that is "true, accurate and fair" and compiled with "reasonable care". This means that anything you say must be verifiable for example, with sickness absence and disciplinary records. But there is a danger. If an ex-employee can show that, in giving a reference, you breach this duty, they may be able to bring a claim for damages against you. This is most likely to happen where a job offer is refused as a result of your reference.
For example, one employer, when asked for a reference, wrote: "We cannot recommend X to you. He was useless at his job and left a trail of destruction in his wake. Do not employ him." The job offer was withdrawn, but the employer had no evidence to back this up. He ended up having to settle out of court.
The better way to approach this situation is to say nothing ie, decline to give a reference. There is no obligation on employers to provide them and employees have no right to expect one.
Don’t ignore any request outright, as you will probably get a follow-up letter or phone call. Instead, write back acknowledging the request and simply state that you are unable to provide a reference. Do not use the word "unwilling" as it sounds contentious. Also, if the ex-employee finds out about it, they could threaten you with a claim.
If an employee left under a compromise agreement and it contained an "agreed reference", you would always have to give this otherwise you would be in breach of it.
l For a free sample of Declining a Reference, call Tina at the NAMB on: 01920 468061