In an interesting case regarding obtaining references in the recruitment process, employers are given fair warning regarding their obligation to ensure that references are true and factual.
In Francis-McGann v West Atlantic UK Limited, the Claimant had lied on his application, stating in his previous experience that he had worked as a Captain despite only ever being a First Officer. In order to hide this, Francis-McGann provided a false reference from a false email address, purportedly from Desilijic Tiure – which any die-hard Star Wars fans will know is an alternative name for Jabba the Hutt.
When West Atlantic discovered this and confronted Francis-McGann, he initially denied the accusation but ultimately admitted to it.
In this case, the Claimant was only hired because of his supposed experience and, therefore, West Atlantic were well within their rights to treat his actions as gross misconduct and dismiss him. Instead, Francis-McGann was offered the opportunity to resign which he did, expressly stating that his resignation was “with immediate effect”.
The Claimant claimed breach of contract as he did not get the 3 months’ notice pay that he was contractually allowed but this claim ultimately failed and was dismissed because, he had to forego this right when he resigned “with immediate effect”.
West Atlantic also lodged a counter-claim whereby they sought to recover the claimant’s training costs because the cost to train up new employees is very high and, in this case, the expenditure was made under false pretences. The judge ruled in the respondent’s favour and this counter-claim was successful.
Obtaining a Reference – guidance for employers
But what does this mean for employers? Do you have to get references? Can you rely on them? What happens if you later discover the references to be inaccurate?
In most cases there is no obligation on an employer to request a reference for a potential new employee. Some employers may instead rely on application forms, interviews or tests to evaluate potential new employees. However, it is common to seek at least one reference from a former employer to verify the work experience of a potential new recruit.
Many employers make an offer of employment conditional upon the receipt of at least one satisfactory reference, the offer can be withdrawn without breaching the contract if an unsatisfactory reference is received.
However, if the employee has already begun work, unless job offer or contract of employment state that the receipt of an unsatisfactory reference provides grounds for termination, they could not be dismissed without notice. If this kind of provision is not given in the contract, the employer will have to give notice to terminate the contract and will be liable for the notice pay due under the contract. In this case the employee had resigned without giving notice and therefore was not entitled to any.
Whilst these may seem to be unfair obligations on the employer, this case should provide some comfort. West Atlantic were successful in defending a claim for notice and recovered over £4,000 in training costs from the employee on the basis that the costs were incurred under false pretences.
Ultimately, cases of providing false references appear to be relatively rare, certainly instances this serious. There is no need to treat all of your potential new recruits with utmost suspicion. However, research does suggest that providing false or inflated information in the recruitment process is becoming more common. Employers should therefore take simple, logical steps to ensure that references are true and accurate, such as researching the company to ensure that it is genuine, and contacting the referee by telephone and asking them to confirm the reference that they have given.
If you have any queries regarding references, employment contracts or indeed any other employment related queries, please contact our expert Charlotte Braham on 01494 521 301 for further advice.