The People Bulletin

Although this case was reported last May it has useful learning points for HR managers concerned with the whole area of giving or not giving references to ex employees – particularly those who have been dismissed from the organisation.  Many now have a policy of not providing references beyond a short statement confirming the name of the individual and the period worked because of the risk of subsequent litigation. 

Diane Woodward was employed by Abbey National PLC (which has since been renamed Santander UK plc) between 1991 and 1994.  In November 1994 she was dismissed and brought proceedings claiming unfair dismissal and sex discrimination.  These were settled without admission of liability in November 1996, and the deal did not include any requirement by the bank to provide a reference for Mrs Woodward. 

Over the subsequent years, she had not been successful in securing a new job and blamed her previous employer, Santander for providing poor references for her.  She subsequently went on to make a further claim against Santander alleging victimisation, direct sex discrimination and detrimental treatment for whistleblowing, and tried to introduce evidence of without prejudice negotiations that led up to her original settlement – in other words that she had requested a provision that a reference should be given but this was refused.  However these communications had been marked ‘without prejudice’ because they were part of correspondence attempting to reach a settlement and as such were not admissible in subsequent court proceedings.  The original employment tribunal which heard her claim in November 1996 for this reason excluded the evidence. 

Mrs Woodward was not happy and appealed to the Employment Appeal Tribunal which was dismissed on 25 May 2010.   The exception to the without prejudice rule did not apply in her circumstances and it was clear that in most of her job applications no request for a reference had been received and, where it had been received a favourable one had been supplied. 

http://www.bailii.org/uk/cases/UKEAT/2010/0250_09_2505.html