Always subject to references...

You give a reference for someone but, Penny Lewis asks, could your altruism come back to haunt you?
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The Independent Online

In anticipation of tomorrow's Hutton inquiry verdict it would be unsur- prising if a number of people, including senior politicians and civil servants, have not been dusting off their CVs, and giving some thought to whom they would approach as referees.

To those in the public eye, every achievement is a matter of record, amounting to a quasi reference. For lesser mortals, the archaic practice of having trusted colleagues and friends vouch for your competence and integrity is a vital prerequisite to securing a new job.

Following revelations late last year that an undercover reporter had infiltrated Buckingham Palace as a butler, job references generally could well be scrutinised more rigorously. This incident raises issues as to the legal consequences both of providing references and ensuring that information, gleaned by employees during the course of employment, remains confidential.

Employment offers tend to be conditional upon work and character references. The onus for obtaining these is on prospective employees. Aside from suitability, there are insurance implications.

But do not assume that references are automatically given. Employment specialist Matthew Tom of Tarlo Lyons confirms: "There is no general duty to give a reference. However, employers will usually be well advised to give a reference where a former employee has brought a claim against the company for unlawful discrimination, whether successful or not. This is because a refusal to do so will usually amount to 'victimisation' of the employee for having stood up for his or her rights, which is a specific head of compensation under discrimination law."

What happens if someone leaves in acrimonious circumstances? Tom says that if the employer and former employee are locked in ongoing litigation and the employer's defence "relies upon allegations of poor performance as the reason for dismissal, the employer is not expected to contradict this position by providing a reference for the employee." If the employer in question were to disregard this fact, further legal headaches could ensue since an employer "owes a duty of care to both the recipient and the subject of the reference.

"The overall duty," Tom adds, "is to ensure that references are true, accurate and fair in substance and do not give a misleading impression. Employees may have a claim for negligence against the author of a reference if he or she breaches this standard and the employee suffers loss as a result."

Likewise, it would be possible for a prospective employer to sue if "an employee who has been dismissed for theft is described as 'honest' in a reference, and then goes on to steal from the new employer."

All employers wish to prevent staff from revealing confidential information to third parties when they leave, but the barrister Rambert de Mello says disclosure issues often evolve into a human rights debate, with a conflict between the right to respect private life in Article 8 of the European Convention on Human Rights, and the right to freedom of expression in Article 10 of the same convention. With secret information he takes the view that "the court would want to protect information unless it is already in the public domain." Defining secret information is tricky. He refers to material as having to possess "sufficient confidential texture". Medical and financial information and security arrangements would probably attract the cloak of confidentiality, while breakfast menus wouldn't.

Another complication comes when employment ends messily. In constructive dismissal cases Tom anticipates there will be an "argument that if the employer has breached the contract, he is not entitled to enforce its terms against the employee. This would also apply to any case where dismissal occurs in breach of contract. Employers are left with no choice but to negotiate this kind of protection back into the relationship under the terms of a settlement agreement."

However, when the model Naomi Campbell took a former employee to court for confidentiality breaches, the judge took a different view. She had engaged Naomi Frisbee to perform "management services" and Ms Frisbee was subject to certain confidentiality clauses. When Ms Frisbee left Campbell's employ she disclosed details of Campbell's private life to the press, on the grounds of breach of contract. The judge found that even if Campbell had committed a fundamental breach, there was "no conceivable basis," for concluding confidentiality obligations were discharged since, as Tom says, it "appears to relate to the circumstances of the employment. That is, that employment by an individual in the public eye such as Naomi Campbell of itself imports a duty of confidence under the common law of a wholly higher order than mere contractual promises. That being so - as in protection for trade secrets - contractual breaches by the employer do not operate to remove the confidentiality obligation."