Liability for References

A Judgment from Sheriff Bovey QC sitting at Dundee has been issued has been issued as 2015 SCDUN 74.

Carol McDonald sued Dundee City Council claiming that the Council were negligent in the provision of a reference to Angus Council. The Pursuer, a qualified Social Worker, had applied for a position with Angus Council. After being verbally advised by Angus that she had been successful, Dundee had supplied additional information. Angus later withdrew the employment offer referring to the lack of an outcome to a SSSC (Scottish Social Services Council) investigation.

The Pursuer had been invited to attend a meeting under the Dundee Disciplinary Procedure in relation to allegations of concern regarding her practice. The meeting was postponed at the Pursuer’s request, was rescheduled, the Pursuer did not attend and there was no rescheduling.

The Pursuer applied for the Angus position and on receiving the verbal confirmation that the application was successful resigned from her Dundee position on one weeks’ notice. Subsequently, Dundee provided additional information to Angus. The Pursuer’s Line Manager, who had not provided the original Dundee reference, advised that concerns had been noted regarding the Pursuer’s practice, that an investigatory meeting had been arranged, it had been postponed at the Pursuer’s request and the Pursuer did not attend the rescheduled date. She had then resigned.

Subsequent to the provision of the additional information Dundee, as the employer at the relevant time, telephoned the SSSC and advised them of the outstanding disciplinary investigation in respect of the Pursuer. Dundee then wrote to the SSSC providing some detail. The SSSC then carried out an investigation and at or about this point in time the Pursuer advised Angus of the investigation.

Some four months later the SSSC advised the Pursuer that it was on balance of the view her conduct didn’t call into question her suitability for registration. No further action would be taken.

The Pursuer raised an Action claiming the loss of the chance of employment with Angus Council based on the reference provided by Dundee.

Sheriff Bovey considered the relevant cases and held that the provider of a reference owed a duty of care to the subject of the reference. He set out five points:-

  1. The provider of a reference owes a duty of care to the subject of the reference in respect of the preparation of the reference.
  2. That duty is to give a true, fair and accurate reference.
  3. The truthfulness, fairness and accuracy of a reference require to be measured in the round and in context.
  4. A reference must not give an unfair or misleading impression overall, even if its discrete components are factually correct.
  5. A reference mentioning incomplete disciplinary proceedings is not unfair where it confines itself to a small number of factually indisputable statements.

On the basis of the evidence Sheriff Bovey went on to reject the Pursuer’s claim, Angus had held the Pursuer’s appointment open for “a significant time”. He found it was the SSSC Inquiry which caused the loss of the prospective job with Angus Council, not the terms of the reference from Dundee.

The Pursuer hadn’t disclosed the Disciplinary Proceedings to Angus Council even although the letter from Dundee requesting her to attend a meeting had been received before the interview with Angus. The Sheriff considered the Pursuer should have disclosed the Disciplinary Proceedings.

Essentially the Sheriff considered that the reference was true, fair and accurate and provided within a reasonable time.

Given that the original Dundee reference had been provided by somebody other than the Pursuer’s Line Manager, Dundee was entitled to inform Angus of the existence of Disciplinary Proceedings.

This case demonstrates that a reference complying with the five points set out by Sheriff Bovey will not give rise to a Damages claim. In the circumstances of this particular case the employer, Dundee City Council, were entitled to draw the prospective employers’ attention to the Disciplinary Proceedings even although that information was provided at a date later than provision of the original reference.

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