Employers who provide references about their staff must take reasonable care to ensure the information disclosed is true, accurate and fair. Schools and colleges also have tell the recipient if an employee has been subjected to a formal capability procedure and reference any safeguarding concerns they have.
In Smith v Surridge and others, the High Court had to decide if a school, its trustees and two of its governors had defamed two of its former teachers when it supplied a reference with said that it had 'some safeguarding concerns' about them.
Ms Smith and Ms Jackson taught at Stanborough School for four years. They left and started new jobs at a different school. Those jobs came to an end and they registered with a job agency and were offered new teaching roles, conditional upon obtaining suitable references from their last two employers.
The job agency asked Stanborough for a reference. It needed details of their employment dates and confirmation that there were no safeguarding issues. After being chased a number of times, the head-teacher's PA emailed a brief reference. It included the following information:
'However, I would like to inform you that there were some safeguarding issues during their time at Stanborough School. We will fill in the forms you have sent us in detail and send these to you shortly.'
As a result, the job offers were withdrawn and both teachers issued proceedings in the High Court for libel, misuse of private information and negligent misstatement.
The teachers argued that the reference to 'some safeguarding issues' inferred that they had abused and mistreated pupils and/or that they were guilty of misconduct. The school argued that this comment had to be considered in the context of a series of emails about the references and, that the language it used, reflected the wording in the request which asked if it had any safeguarding 'concerns'.
High Court decision
The Judge said that a hypothetical reader would have taken the reference at face value. They would understand that safeguarding is a broad term with wide meaning and wouldn't necessarily jump to the conclusion that these 'concerns' were at the more serious end of the spectrum. But they would assume that something had happened.
The Judge said that the words used meant that during the time the teachers worked at the school, they did something that gave rise to a safeguarding issue: specifically, something that either caused harm to a child or placed a child at risk of harm. And, that was defamatory at common law.
Tips for schools and colleges providing references
1. Think about what information you are providing and the evidence you have to support it
You owe two duties: the first of these applies to the individual and their prospective employer. It requires you to take reasonable care to ensure the information contained in the reference is true, accurate and fair. The other duty is owed to the individual alone and that requires you not to make defamatory statements about them.
This means that you must not compile the reference maliciously or negligently, or give an impression which is either too negative or misleadingly positive. Nor should you say something that injures the reputation of another person.
As well as bringing a defamation claim, if you do give an inaccurate reference, your former employee could bring a claim for damages in negligence for lost earnings if they can show that it was your reference (as opposed to, say, their own lack of skills or poor interview performance) which costs them the job. Also, the prospective employer can claim against you for its wasted recruitment costs and damages, if it can show that without your misleadingly positive reference it would not have hired your former employee.
2. Stick to factual information
We usually advise employers to provide only brief, factual details and include a statement that its policy is to only provide basic details and that is should not be taken to be disparaging of the employee in any way.
However, schools/colleges are subject to additional duties. You must disclose the fact that the employee has been subject to capability procedures and reference any safeguarding concerns you have and action taken in respect of these (even if no action was taken).
3. Decide who can give references
It is worthwhile developing a policy for dealing with references, including identifying who has authority to provide a reference on the school or college’s behalf. This will help you to respond to requests consistently. If there are safeguarding issues, get someone senior to approve the reference before it goes out.
4. Don't have 'off the record' discussions about ex-employers
Factual references don't help prospective employers to determine what the candidate is really like. Often, a prospective employer, in receipt of a noncommittal reference, will attempt to obtain more information by speaking to the candidate’s former head teacher or direct manager. Any information given verbally – even if it is stated to be 'off the record' must be true, accurate and fair. This is often misunderstood. It is not possible to have a conversation 'off the record' or on a 'without prejudice' basis unless there is a legal dispute between your school/college and the organisation receiving the reference. Prefixing a conversation in this way will not therefore mean that it cannot be referred to at a later date.
5. Don't rely on disclaimers to avoid legal claims
Courts are not usually that sympathetic to employers who try and avoid liability by hiding behind a disclaimer. A disclaimer may help you to defend claims but only to the extent that it is reasonable. Public sector employers should also bear in mind that their public duties to act with honesty and integrity cannot be circumvented by using a disclaimer in a reference.
6. Set out clear rules for staff wishing to provide personal references
Your policy should confirm whether staff members can provide personal references for other members of staff and set guidelines that apply. If you do permit these, the individual providing the reference must make it clear that the reference is a personal one and is not written for or on behalf of the school/college. The individual providing the reference should use their own paper or email address and not anything linked to your organisation.
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