Jackson v Liverpool City Council

An employer who supplies a reference for a former employee to an identified prospective employer owes a duty of care in negligence. The reference must be true and factually accurate, and fair when read as a whole. Fairness concerns the overall balance, including misleading nuance or innuendo, rather than a procedural right for the former employee to challenge the reference. A formal investigation is not invariably required, particularly where the employee has left and investigation is impracticable. Relevant explanations given in a later conversation with the prospective employer may form part of the reference. A caution based on untested allegations can be fair if the allegations are accurately presented as uninvestigated and non-conclusive.

Mark Jackson left employment with Liverpool City Council and later applied for a post with Sefton Borough Council. Liverpool supplied a reference which was generally favourable but referred to concerns about his recording and record-keeping. The concerns had not been formally investigated because he had left employment. Sefton subsequently discussed the concerns with Liverpool.

The Liverpool County Court held that the reference was true and accurate but unfair because it conveyed unanswered and uninvestigated allegations without giving Mr Jackson an opportunity to respond. Liverpool appealed. The central issue was whether fairness required an investigation or procedural opportunity to challenge the concerns, and whether the written reference and subsequent telephone conversation should be assessed together.

Lord Justice Leveson gave the judgment. Lord Justice Richards and Lord Justice Maurice Kay agreed.

1. Duty of care. The principle in Spring v Guardian Assurance [1995] 2 AC 296 is that an employer providing a reference for an ex-employee to an identified prospective employer owes the ex-employee a duty of care in negligence. The duty requires reasonable care and skill in ensuring the accuracy of facts from which the recipient may form an adverse opinion, or which form the basis of an adverse opinion expressed by the employer.
2. Meaning of fairness. Bartholomew v London Borough of Hackney [1999] IRLR 246 confirmed that truth, accuracy and fairness must be assessed in the round and in context. A reference must be fair in its overall balance, including any opinion, nuance or innuendo which may be drawn from factual assertions. Fairness is distinct from a procedural mechanism allowing the former employee to challenge an adverse opinion.
3. No general investigation requirement. The duty does not invariably require a former employer to conduct a formal investigation or obtain the ex-employee’s comments before providing a reference. The legal and practical difficulties of investigating allegations after employment has ended are relevant. Refusing to provide a reference may place the former employee in a worse position.
4. Application. Liverpool could honestly identify the concerns because they explained why the reference questions could not be answered positively or negatively. The telephone conversation made clear that the allegations had not been investigated and were not being treated as established facts. That conversation formed an integral part of the overall reference, and Sefton could have raised the matters with Mr Jackson.
5. The written reference and telephone conversation, taken together, were careful, true, accurate and fair. The appeal was allowed.

• Court of Appeal (Civil Division) — [2011] EWCA Civ 1068; Liverpool City Council’s appeal was allowed.
• Liverpool County Court — On 28 July 2010, HHJ Roderick Gore QC held that the reference was unfair and found for Mark Jackson, leaving damages to be assessed. Liverpool appealed with leave granted by Rix LJ.