Introduction
The 3 months of compensation awarded to the claimant in the Kankanalapalli v Loesche Energy systems case turned on one everyday clause in the offer letter.
The Ong v Aberystwyth University case in the ET takes the starkness in consequence further.
A sum of £265k turned on one line of reference given by the HR Business Partner for the University to the claimant’s prospective employer.
Goes to show that HR is truly at the frontline of employment law. Despite being a high-volume function often reliant on standard forms and templates, tribunals will readily draw any inference that may be available, from words you use in those forms or correspondence.
The case
The Ong case concerned a part-time cleaner who brought multiple claims in discrimination against the University. The case has already drawn significant media attention. Save for a claim in victimisation for a bad reference & one in unfair dismissal, all of Miss Ong’s claims were dismissed by the ET. But, that one victimisation claim that succeeded earned her £265k in future loss.
What exactly did the HR Business Partner say in the reference?
“Unfortunately we are unable to provide a detailed reference at this point, but would not wish this to be detrimental to Miss Ong gaining employment..”
The University also filled a reference form that the prospective employer had sent. This Form required replies to questions about the claimant’s honesty/integrity; working relationship between colleagues and public; disciplinary record; and reason for leaving.
To each question, the HR Business Partner replied in the terms: “Unable to comment – the University remains in dispute with the applicant and this is a factor of the dispute;”
Unsurprisingly, the prospective employer withdrew their offer to Miss Ong. They were entitled to do so in law, because whether a reference request is satisfactory or not, is question for the hirer in their subjective opinion.
What was the HR Business Partner’s reason for giving this reference?
He gave evidence that he wanted to ensure that he provided a full reference in which he was honest and factually correct because it would be a matter of record on Miss Ong’s personnel file. He denied this reference was connected to any of the alleged protected acts.
What did the ET decide?
The ET decided that the words “the claimant was in dispute with the respondent” may well have been accurate but were unnecessary. They constituted a detriment and were not required to fulfil the respondent’s obligation to provide a fair reference. This information had no relevance to the questions put by the prospective employer. The words were likely to harm Miss Ong’s prospects of securing the role, and they eventually did.
Could the University have saved itself if it provided no reference?
The judgment does not conclusively address this. And strictly, in law, there is no obligation on an employer to provide a reference, save that, when they do it must be fair and accurate. However, the failure to provide a reference can still be argued by a claimant as an act of
- direct discrimination, if they can establish that you would have provided a fair reference to a hypothetical or actual comparator who did not share the protected characteristics; or
- victimisation, if they can establish that you were aware of the protected acts and acted in the manner you did, by reason of that act.
So, what’s best to do?
It is more prudent to provide a limited and standard reference, than a highly bespoke one or none at all. It’s best to have a clear policy of what reference will be provided that applies universally to all ex-employees. Standard employment references contain the start date of employment, end date and the last-held role of the employee. Reasons for leaving are not included as standard. It is also good practice to communicate to the prospective employer that your policy is to not provide further details, nor is it to respond to bespoke forms, and that no adverse inference of the candidate’s suitability should be drawn from it.
Conclusion
In the settlement agreement advice I provide to employees, I quite often see employers seeking to use the provision of reference as a leverage in the negotiations. Ong neutralises the purported extent of that leverage. And adds another thing to the list of many that HR professionals need to be somewhat cautious about.
I offer employment advice to both employers and employees and frequently provide independent legal advice to employees for settlement agreements. Do feel free to reach out if I can assist in any way, or to pass my contact details to any employee needing settlement agreement advice and is unsure where to go.