Negligent misrepresentation in employee references: a cautionary tale

October 11, 2024

A recent appeal decision in the High Court (Simon Bennett v. Mitie Technical Facilities Management Limited (HC, 19 January 2024) (unreported)) confirmed that an employer was not negligent in relation to a reference given for an ex-employee. However, this case offers a cautionary tale about the risks surrounding employee references.

What gave rise to the employee's claim?

The claimant was employed by the defendant, a facilities management company, for a period of around six months. It was the defendant's case that, during periods of his employment, the claimant was late to work and often used inappropriate language in the office. The claimant's former manager did not deal with these issues on a formal basis (such as by escalating this to the HR team) but held an informal meeting with the claimant to discuss his timekeeping. The claimant subsequently resigned from his position.

Several years later, the claimant interviewed for a new role and was purportedly told that the role would be offered to him. Following this, an employee of the prospective employer asked the former manager (who was an old friend) for feedback on the claimant. During this informal conversation, the former manager referred to the claimant's poor timekeeping and use of inappropriate language, but said that the prospective employer should make up its own mind about whether to offer the claimant the role. The claimant alleged that the prospective employer then informed him they no longer wished to offer him the role.

The claimant issued a claim in negligent misrepresentation against his former employer on the basis that, among other things, the defendant provided inaccurate information in the reference and failed to take reasonable care to ensure that the reference was fair and not misleading.

What did the court find?

The claim was dismissed at first instance. On appeal, Mr Justice Lavender agreed with the first instance judge that the reference was fair and not misleading.

Notably, the judge held that there is no duty of care on employers to give a reference which is comprehensive. Instead, what is owed is a lesser duty to take reasonable care to not give misleading information. Therefore, there was no duty on the employer in this case to provide positive feedback in relation to the standard of the claimant's work in the context of providing negative comments as to his timekeeping and inappropriate language. On this basis, the appeal was dismissed.

What should employers take away from this?

The success or failure of a claim in negligent misrepresentation in the context of employee references will always be fact-specific. Nevertheless, we have set out below some guidelines which can help to reduce the likelihood of such a claim being brought:

• Ensure that all employees are aware of your reference policy. It would be prudent for all employees to refer any reference requests (whether formal or informal) to the HR team, rather than any individual manager or supervisor.
• Beware - a conversation between friends in the context of a recruitment process can, in some cases, amount to an employment reference. The same duties that apply to formal references apply to informal conversations.
• Employers do not have a duty to provide a comprehensive reference, but reasonable care should be taken to ensure that any information that is provided is correct and not misleading.
• As far as possible, managers should keep written records of concerns regarding employees' conduct at work and any meetings relating to this.

How Dentons can help

Dentons acted for the successful defendant at first instance and on appeal. We have extensive experience of advising and acting on a range of employment disputes including those relating to alleged employment contract breaches, business protection cases, discrimination and negligent references. We can provide a dedicated team comprising employment and commercial disputes specialists to advise on all stages of a dispute, from the investigatory stage to a final hearing, and have experience of defending and issuing claims in all forums, including employment tribunals, the county courts and the High Court.