Most employers will ask potential job candidates for a reference, or even a number of references, but what happens after a referee’s details are provided?
Some employers will simply file the information, others will send a precedent questionnaire to the referee, others may go as far as calling the referee to discuss the applicant. But what if a candidate provides a false reference and is offered employment on the basis of that reference? This issue was considered in McGann v West Atlantic UK Limited.
The facts of the case
Mr McGann (“M”) successfully gained employment with West Atlantic UK Limited (“WA”) as a Captain flying commercial airliners. Within his application M provided a false reference from a false email address which came from a referee called “Desilijic Tiure”. As avid Star Wars fans will realise Desilijic Tiure is, in fact, the Star Wars villain, Jabba the Hutt.
WA later realised the referee was fake and M eventually admitted to his wrong doing. In the circumstances WA offered M the chance to resign his position, which he chose to accept.
M then decided to pursue a claim against WA for his contractual entitlement to 3 months’ notice pay. WA in return made a counterclaim for repayment of training costs of £5,000, which it was entitled to do under the terms of the contract.
The Employment Tribunal (“ET”) dismissed M’s claim but upheld the WA’s counterclaim. The ET stated that,
“If there had been an incident, the consequences for [WA], and others, could have been catastrophic. Even if no lives were lost, any enquiry would have discovered that he was inadequately trained for the position in which he flew. In those circumstances [WA] was well within [its] rights to treat the actions as gross misconduct.”
So what should you do when checking employment references?
The position being filled will often dictate the level of checks an employer should carry out, for example checks against a position such as an airline Captain will undoubtedly be more stringent than those against a lesser qualified position with a lower level of responsibility.
However, regardless of the position it is good practice for employers to have a policy in place for checking referees are genuine. Simple checks could include checking the referees credentials on the referees own employers website, LinkedIn searches, Companies House searches if the referee is listed as a director and searches on 192.com, all of which will tell you if the referee is who he/she is claimed to be and suitably positioned to provide a reference.
It is always good practice to make it a term of the candidate’s offer and also the contract that the reference must be acceptable to the employer and make it clear what the consequences will be if it is not. This is particularly important if the candidate may commence employment before receipt of the reference. In circumstances like McGann the provision of a false reference is always likely to undermine the relationship of trust and confidence, but what if the reference is just not satisfactory?
Are there other matters to consider at the outset of employment?
It will only be infrequently that a false reference will be provided but it is always worth ensuring the reference is genuine. Is it on company notepaper or from a company email address. In addition, when making offers it is always sensible to ensure that the offer and the contract are conditional on the employee actually being able to work for the employer and not being prevented by restrictive covenants or immigration issues.
If you wish to discuss any employment issue with us please call us on 0118 952 7284 or email Peter Olszewski at [email protected].
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.