Reference ruled discriminatory

An employment tribunal has ruled that a reference given by an employer was unfair and amounted to disability discrimination and victimisation. Harmajinder Hayre explains why.

In Mefful v Citizens Advice Merton & Lambeth Mr Mefful worked at the Citizens Advice Bureau (CAB) as a senior advisor from 2004 to 2012. During this period, he successfully managed contracts and projects, and had received good performance reviews.

During his employment Mr Mefful had two spells of long-term absence. The first was for two months in 2010 due to grief and stress after his partner lost a baby, and the second was for a further two months in 2012 due to shoulder pain and hearing loss. The latter amounted to a disability under the Equality Act 2010.

In 2012, Mr Mefful was made redundant and he brought a tribunal claim alleging unfair dismissal and discrimination arising from disability. CAB conceded the unfair dismissal claim, but the discrimination claim was contested.

In 2015, after three years out of work, Mr Mefful successfully obtained a job with a new employer, subject to a satisfactory reference.

When asked to provide a reference to the new employer, CAB stated that it would not re-employ Mr Mefful, overstated his levels of sickness absence by around 60 days, and did not make any favourable comments about his work history or performance.

Employment Tribunal decision

The employment tribunal found in favour of Mr Mefful. In the judgment, the tribunal stated that CAB had knowingly conveyed the impression that it would not re-employ Mr Mefful due to his sickness absence. This was held to amount to unfavourable treatment because of something arising from his disability.

With regards to the victimisation claim, the tribunal found that by bringing a claim in relation to discrimination and his dismissal, Mr Mefful had done a protected act. The tribunal found the CAB's overstating of his sickness absence and failure to refer to any positive aspects of Mr Mefful's performance on the reference subjected Mr Mefful to a detriment as a result of his original tribunal claim.

The reference provided was found to be not honest, fair or accurate, and it was inevitable that given its contents, Mr Mefful's offer of employment would be withdrawn.

Comment

When considering the issue of references for ex-employees, employers should remember that they potentially owe a duty of care both to the ex-employee and to their potential future employer. Regardless of the form of reference provided, employers should always ensure that the contents are accurate and fair.

This is particularly important where there have been negative aspects to an ex-employee's performance or around the circumstances leading to the termination of their employment. In this case, the tribunal found that the CAB had allowed its view of Mr Mefful's employment to be tainted by the fact he had brought tribunal proceedings against them.

In these circumstances, it would be wise for an employer to keep a reference as short and factual as possible, limited to dates of employment and job titles. If a new employer asks any further information beyond the basic information, care should be taken to ensure the answers are not misleading or discriminatory in any way.

It is also good practice to include a disclaimer limiting liability to the new employer for potential errors or omissions in the reference. However, this is only likely to be effective if the rest of the contents of the reference are truthful and fair.

Harmajinder Hayre is executive partner in the Leeds office of Ward Hadaway. He can be contacted on 0113 205 6712 or This email address is being protected from spambots. You need JavaScript enabled to view it..