QUOTE (Chesapeake @ Oct 16 2011, 08:27 PM)
Did you not read this section below? Although it is sometimes best practice to keep references short and neutral (and sometimes Company Policy) there is the added obligation to the possible new company if there has been "major" problems with the outgoing employees service. This of course would have had to have been fully dealt with through the company's disciplinary procedure. It could not just be conjecture.
<h2 style="clear: both;">"What are the respective rights and obligations?</h2>Negligence
Obligation:
An employer owes a duty of care to both the employee and the recipient for the content of a reference. The employer must provide a true, accurate and fair reference.
Rights:
If an employer fails to take care in providing a reference, the employee or the recipient may be able to bring a claim in negligence for any damage suffered as a result."
Yes I did. In respect of the 2 points you have referred to:
1. The "duty of care" appears to refer to the content of the reference, not the giving of a reference. "True, accurate and fair" means exactly that. It does not mean "a duty to disclose."
2. Similarly, the words are "fails to take care" not "fails to disclose" and "care" is not specific. The writer of a reference could be carefully observing their company policy, or carefully respecting a confidentiality in not disclosing something. The sentence (in the article) following your quoted one is clearly talking about an employee bringing an action.
I read the article you refer to as one where the author is avoiding saying the employer has to disclose any particular matter, and is aimed at a situation where the (ex) employee may be the claimant with regard to an unfair or inaccurate reference.
In any event, the article concludes:
"In summary, an employer does not:
• have to give a reference unless the employee has a contractual entitlement to one
• have to give a full and comprehensive reference."
(the situation may be different concerning TUPE transfers, other contractual arrangements and regulatory obligations)
Regards