Mr. P Mefful v Citizens Advice Merton and Lambeth Limited
A tribunal ruled that a man had been discriminated against after his ex-employer made comments linked to his sickness absence in a reference. Although this is an employment tribunal decision and therefore not strictly binding, this case is a reminder of the need to prepare references carefully and objectively, ensuring that they are both balanced and accurate.
Background
Mefful claimed he suffered victimisation and disability discrimination after his former employer, Citizens Advice Merton & Lambeth, where he worked from 2004 until he was made redundant in 2012, gave him a reference that lost him a job offer.
During the course of his employment, Mefful had two lengthy periods of absence – one in 2009 and 2010 after he and his partner lost a baby, and a further stint in 2012 for shoulder pain and hearing loss in his right ear.
After being made redundant, Mefful brought a separate case, arguing that his dismissal was unfair and he was discriminated against because of his disability. Citizens Advice Merton & Lambeth has since conceded that the dismissal was unfair, but the disability discrimination claim is ongoing.
After a three-year period of unemployment, Mefful was offered a job in 2015 and his former employer was approached for a reference. However, after receiving the reference, the job offer was withdrawn.
In the reference, Citizens Advice Merton & Lambeth noted it would not re-employ Mefful, with its then-chief executive, Ms James, later explaining at tribunal that this comment was linked to his sickness absence.
However, the tribunal found that the employer’s records on Mefful’s absences were overestimated to a “substantial degree”, and therefore his potential employer had been provided with inaccurate figures.
Mefful also provided the tribunal with evidence that suggested he had performed well in his role, which was not challenged during cross-examination.
Citizens Advice Merton & Lambeth contended that, even though the reference did comment on Mefful’s sickness absence, it was “true, accurate and fair” and did not arise from discrimination or the earlier tribunal he had brought.
Decision
The tribunal ruled that the organisation had “failed to provide any favourable information about [Mefful] personally or about his performance… This amounted to a detriment and it created what appeared to be an entirely false and misleading impression of his successful eight-year career.”
Comment: Accuracy is everything if you decide to give a reference regarding a former employee, otherwise the potential consequences can be costly. This case is a useful reminder that employers can still be found liable after employment has ended. Sadly, references have become pretty much worthless since most employers now adopt a policy of simply confirming only the basic information i.e. the dates of employment, salary and role held in order to avoid any liability.
However, if compelled to provide more information, employers must be able to show that it is factually correct. It is a catch 22 problem for employers – how much should they put in a reference, especially if there are negative aspects? Nevertheless, the underlying principle in all cases is that if any reference is given it simply must be fair and factual.
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