02 Sep 2014

A recent case in the High Court, AB v A Chief Constable, considered whether the Chief Constable of a police force had a duty to provide further information to an employee's potential new employer that included details of outstanding disciplinary action and a long period of sickness absence, when he had previously provided a standard reference.

In this case, the Claimant (AB) was a senior police officer. AB was gay and it was alleged that he had used his senior position in the police force to influence the appointment of a friend as a special constable. He then became subject to a disciplinary process and, during much of that period, was absent on sick leave.

AB applied for a position with a regulatory body. In due course, the regulatory body wrote to the police force with a reference request that contained detailed questions, including information regarding absences for the past 12 months.

A standard reference template had been introduced by the force in 2009 and the Assistant Chief Officer sent such a reference to the regulatory body. The standard reference confirmed dates of employment and job title. However, a disclaimer was included confirming that, although the reference was made in good faith, neither the writer nor the force accepted any liability for any loss or damage caused to the addressee as a result of reliance being placed upon it.

AB accepted the job with the regulatory body and resigned from his position with the force. In his resignation letter, AB claimed his reason for leaving was because he felt victimised. He also made a request that the disciplinary hearing did not go ahead. The force responded by confirming that the disciplinary hearing would be stayed and denied his allegations of victimisation.

Shortly after this, the force wrote to AB to confirm that they had become aware that the regulatory body had asked for further information and that they had concluded that a corrected reference should be sent. They enclosed a copy of their suggested response to the regulatory body. The new reference gave full details of AB's absence and explained that his resignation had been accepted just prior to a disciplinary hearing for alleged gross misconduct.

At this point, AB's solicitors served a notice under the Data Protection Act requiring the force to cease processing his personal data on the grounds that the processing in this case would result in substantial damage or distress to AB and therefore it would unlawful for the force to send the second reference. The Chief Constable argued that he had a legal duty in both private and public law to send the second reference to the regulatory body as the first reference was incomplete and misleading.

The High Court held that the second reference should not be sent.

The first reference was inaccurate and misleading; however, the disclaimer made it clear that the force only provided standard references and, therefore, as a whole, the first reference was not misleading.

The second reference could not be sent because the second reference contained personal data under the Data Protection Act and AB had a legitimate expectation that a standard reference would be provided.

Our view…

If an employer gives a reference it must be a fair and accurate one. Most employers tend to stick to a policy of giving a standard factual reference and this case highlights the importance of using disclaimers. Employees can challenge a reference if they think it is unfair or misleading; however, in this case, the second reference appeared to be accurate but perhaps unnecessary in the circumstances and a case of too much information.