Last December, Mr Harry Clarke, who was employed by Glasgow City Council (GCC), was involved in a crash whilst driving a bin lorry, resulting in the deaths of six individuals. A fatal accident inquiry (FAI) was undertaken and we previously commented on possible lessons to be learned by employers: [update 190].
The FAI has now concluded and the Sheriff’s determination has been issued. In his determination, Sheriff John Beckett, QC, suggested that the accident might have been avoided had a number of potential reasonable precautions been taken.
One of those reasonable precautions was that Mr Clarke’s previous employer might have provided a full, accurate and fair employment reference to GCC in respect of his application for employment.
The Sheriff recommended, amongst other things, that:
GCC, when employing a driver, should not allow employment to commence before references sought have been received; and
GCC should carry out an internal review of its employment processes with a view to ascertaining potential areas for improvement in relation to checking medical and sickness absence information provided by applicants, for example, by having focussed health questions within reference requests for drivers and obtaining medical reports in relation to health related driving issues from applicants’ GPs.
We discuss below further matters for consideration by employers reviewing their current procedures in light of these recommendations.
Prospective employers will often request one or more references when considering whether to employ an individual, and many job offers will be conditional on a satisfactory reference being provided.
In most cases a previous employer is not legally obliged to provide a reference for an employee or ex-employee. There are, however, some exceptions to this general principle in certain regulated industries such as financial services.
Assuming these exceptions do not apply, a previous employer would, legally, be within their rights to refuse to provide a reference. However, if a reference is provided, it must be true, accurate and fair, and should not give a misleading impression.
Employers should ideally have a written policy in place which should confirm who within the organisation is permitted to provide a reference on behalf of the organisation. The policy might also specify the nature of any reference that will be provided (ie whether a factual reference will be provided, confirming dates of employment and job title only, or whether a more detailed reference will be given). Having a written policy will help ensure compliance and consistency.
Today, many employers choose to provide factual references only, confirming the dates between which an individual was employed and their job title. If this is your organisation’s policy, it is advisable to state that this is the policy in the reference.
If a reference does go further and comment on an employee’s strengths, weaknesses and suitability, employers must be careful to ensure that the reference is fair, accurate and non-discriminatory. In particular, if you do intend to comment on an employee’s attendance record or health issues, it would be advisable to take legal advice first.
Employers must also have regard to the Data Protection Act 1998 (DPA) when providing references. For example, information about an employee's state of health may amount to sensitive personal data and can only be disclosed in limited circumstances. It is unlikely that disclosing the number of days’ absence that an individual has had during a particular period would breach the DPA, however, providing further information such as the reasons for absence might do. In those circumstances, the individual’s consent may be required before the reference is provided.
Providing references is one area where it is vitally important for employers to act consistently. Treating everybody in the same way, and providing the same level of information to prospective employers in every case, reduces the possibility of a former employee being able to argue that the way their reference request was handled was discriminatory or an act of victimisation.
The bin lorry tragedy does bring in to sharp focus the tension between the risks for the former employer in providing information that could be actionable by the former employee, and the risks of not providing the new employer with enough information to make an informed decision about whether the job applicant can do the job competently and safely.
Perhaps the Sheriff’s determination will act as a catalyst for debate about whether employers ought now to take a more proactive and co-operative approach to providing references to prospective employers, but that will be difficult to achieve unless employers feel confident that they can offer a fair opinion without fearing litigation.
Good legal advice can go a long way to providing employers with the necessary confidence in this regard. Nevertheless, it is recommended that all employers should:
Review their current policy on references to ensure that it accurately reflects their actual practice;
Make staff aware of the policy and ensure that references are provided in accordance with it;
Only provide references that are true, accurate and fair, whilst ensuring they are not misleading; and
Ensure that references comply with the Data Protection Act and anti-discrimination legislation.
A summary of the Sheriff’s determination is available at http://www.scotland-judiciary.org.uk/10/1531/Fatal-Accident-Inquiry--Glasgow-bin-lorry-crash
The full text is available at http://www.scotcourts.gov.uk/search-judgments/judgment?id=e916fba6-8980-69d2-b500-ff0000d74aa7