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LEGAL CORNER – Inaccurate reference is considered unfair

28th Jul 2017

Under the Equality Act 2010, if an employee either raises a complaint or brings a claim to the employment tribunal, alleging discrimination, if that employee then subsequently suffers a detriment as a result, they are entitled to raise a claim of victimisation. Employers and former employers, therefore, need to ensure they deal with those who have brought complaints fairly and reasonably in all circumstances (as they should in any event!) or risk a further complaint or claim.

The Employment Tribunal recently had to consider such a complaint made by Mr Mefful against his former employer, Citizens Advice Merton and Lambeth Ltd (Case No 23028103/2015). Mr Mefful was employed by Citizens Advice from 2003 until 2012. During his time he was promoted twice, the second time after a rigorous competitive selection process. His performance was often commended and no concerns were raised about his work. During his employment, he had two significant periods of absence, a couple of months in 2009/10 after he and his partner lost a baby, and then a period of three months in 2012 with a shoulder injury and hearing loss, both of which were considered to be disabilities for the purposes of the Equality Act 2010.

In 2012, Mr Mefful was made redundant. His termination letter stated that if he required a reference for any future employer, Citizens Advice would be pleased to provide one. There was no suggestion that he might receive a reference that did not accurately reflect his performance. After his dismissal, Mr Mefful became aware of documentation that suggested that his dismissal might be unfair. He, therefore, brought a claim for unfair dismissal and disability discrimination against Citizens Advice. They conceded that he had a disability, although the discrimination claim has not yet concluded.

In 2015, Mr Mefful applied for a position with another organisation. He was interviewed and offered the position, subject to a satisfactory reference. Citizens Advice did not initially respond to the request for a reference, and therefore Mr Mefful contacted them directly. He noted in his email that he was recovering from a disability related absence, and was keen to return to work. He requested that the reference is dealt with swiftly to ensure that the job offer was not withdrawn.

The completed reference was such that the job offer was withdrawn. In particular, Citizens Advice had noted far higher levels of absence for Me Mefful than had actually occurred (which they characterised as an ‘error’), and in answer to the question whether they would re-employ Mr Mefful, they answered ‘No’. In the section on performance, the person completing the form stated they were unable to complete the section as they had not worked with Mr Mefful in a line management capacity. They also failed to respond to the question whether they knew of any reason why Mr Mefful should not be employed in the position he had been offered.

Mr Mefful, therefore, brought a victimisation claim to the tribunal. His claim succeeded; the Tribunal accepted that there was no good reason for providing inaccurate records of his absence. Citizens Advice were also criticised for not answering the question on performance fully, as there were ample records the person completing the form could have considered (in addition to the fact that she had managed Mr Mefful for a period of time). It was also apparent from the responses of some of the Citizens Advice witnesses, that one of the key issues in failing to complete the form fully was the fact that Mr Mefful had brought a claim against them, and that they, therefore, had a negative view of him and his performance and integrity – despite there being no issues raised with him during his employment. As a result, the Tribunal accepted that the reference was clearly a detriment to Mr Mefful, as his job offer was withdrawn, and that the reason for the detrimental act was the fact that he had brought a claim against Citizens Advice.

Employers, therefore, need to be very aware of how they deal with any issues that arise, including reference requests, after an employee has brought a claim against them. In this case, Citizens Advice were alive to the issue of a victimisation claim, but their tactic of simply failing to respond fully to questions they did not want to answer was of itself considered to be a detriment. Employers need to answer all requests in a way that is fair, honest and accurate.

Safia Tharoo, Barrister, 42, Bedford Row, London

 

 

 

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