Many employers have become aware of the risks in giving an inaccurate reference about a former employee. As a result some employers now restrict a reference to a brief confirmation of the dates someone was employed and what he or she did – a sad development which means that such a reference is usually of little or no use to a prospective employer.
A recent dismissal claim case has shown that it is not only references that can be a source of liability for an Employer. It was held recently that an Employer was liable for negligent misstatements about an ex employee in an email sent by a member of staff to a new employer that resulted in dismissal. In that case the duty imposed on the Employer to take reasonable care in preparing a reference was extended to the statements made in the email. The ex employee won an employment tribunal claim for damages against the former employer.
For an employer, especially a small business, this is yet another employment law headache to think about. Any sensible employer should therefore alert employees not to make remarks about former employees to a new employer if those remarks could be seen as in anyway critical of a former employee.
A well drafted staff handbook with an appropriate email and internet policy can help – by informing staff that no emails or other communications should be made about an ex employee that is anyway critical unless the Employer has approved its contents and authorised its sending. It can warn that any employee breaching the policy can face disciplinary action.
Also if someone has left acrimoniously or there are employees who fell out a further word with remaining employees reminding them not to talk about the departing employee could be a timely reminder.
As far as those terminations of employment which are regulated by a compromise agreement is concerned, it is common for employers to commit themselves in such agreements to use reasonable care to ensure nothing derogatory is said about the leaving employee by members of staff. This recent case establishes that there is a real risk that ex employees can take action if untrue remarks are made about them, which causes damage to their future employment.