Mr Paul Mefful began working as a volunteer at Southwark CAB in 2000. In 2003 he was employed as a general adviser and in 2004 he was promoted to senior adviser at Merton and Lambeth CAB following a competitive selection process. In May 2004 he became a specialist services manager. In (what was then) a Legal Services Commission audit report in 2006 the LSC contract with the CAB, for which Mr Mefful was responsible, was found to be “outstanding in quality and performance”.
He was absent from work from November 2009 to January 2010 due to grief and a stress reaction after he and his partner lost a baby. In 2012 he suffered severe and constant shoulder pain as well as total hearing loss in one ear, tinnitus and vertigo. An employment tribunal determined that these conditions meant that he was suffering from a disability within the meaning set out in the Equality Act 2010. He took 63 days off work between April and July 2012. In August of the same year he was made redundant.
Mr Mefful brought claims of unfair dismissal (upheld) and disability discrimination (continuing) but the judgment I am reporting here concerns separate proceedings relating to the provision of a reference by the CAB to a prospective employer. At the time the CAB had guidance concerning the provision of a reference which included the following:
“Any reference provided by the Bureau for an employee should be well researched and avoid unfounded opinions. If negative, it should not refer to matters not previously raised directly with the employee. If asked to speculate on suitability, it should be cautious and where necessary use a disclaimer. It should aim to offer a balanced view without being too glowing or too damning unless wholly merited.”
In May 2015 Mr Mefful applied for the post of Welfare Benefits Advisor at One Housing Group Limited. He was interviewed on 3 June and offered the post on 4 June, subject to a satisfactory reference. He was contacted by One Housing on 12 June because they wanted him to commence employment as soon as possible. At the time Mr Mefful was engaged in his separate employment tribunal claim and it turned out that the provision of the reference had been stalled because, in the words of Ms Harris, a former Chair of Trustees and a member of the strategy group, in an email sent to a colleague on 26 June, she described the reference application as being “very problematic”. She noted that “…the way that he has conducted himself in the [unfair dismissal and disability discrimination] litigation has been totally dishonest”.
Although denied by each of them when giving evidence, the tribunal found that Ms Harris and Ms James, CEO of the CAB, had consulted in detail about the reference. It was eventually completed by Ms James on 29 June. Sickness absences had been filled out in the form. In answer to a question about whether the CAB would re-employ Mr Mefful, the answer given was “no”.
Mr Mefful brought separate employment tribunal proceedings alleging victimisation and disability discrimination proceedings arising from the way in which the reference request had been completed.
The tribunal noted that no favourable comments were provided about his employment history, performance, or his clean conduct and capability, as well as doubting the explanation Ms James provided for saying that she would not re-employ him (while giving the impression that this was because of sickness absence but also taking into account an unreferenced affair that Mr Mefful had with the CEO of the CAB some eight years earlier). Overall, “the reference did not provide a balanced or fair picture of [Mr Mezzul’s] eight year career to a prospective employer”.
The tribunal continued:
“The Tribunal find as a fact that Ms James knowingly conveyed the impression to the prospective employer that she would not re-employ the Claimant due to his sickness absence, this was unfavourable treatment because of something arising from disability, namely his sickness absences in 2012. At the time the reference was provided, Ms James was aware that the Claimant was disabled as he referred in his email to disability related sickness and the Employment Tribunal had ruled in his favour and concluded he was disabled. Ms James accepted that she intended to convey the impression that she would not re-employ him because of his sickness absence and therefore intended to treat the Claimant unfavourably because of his sickness absence which in 2012 were for disability related reasons.”
The tribunal concluded that other parts of the reference form were completed inadequately so that the overall impression given was misleading. In particular Ms James failed to complete part 2 of the form because Mr Mefful was at the time pursuing a claim in the employment tribunal. This failure was a detriment to Mr Mefful because this was an opportunity to provide positive information about his career history. “It would have been reasonable and appropriate to access the objective information about the Claimant in his role to complete this part of the form honestly and objectively and provide a balanced view.”
To compound matters it turned out that the sickness records relied on were inaccurate.
The tribunal readily concluded that Mr Mefful had been victimised in connection with the other tribunal proceedings and discriminated against on account of his disability.
The proceedings stand adjourned pending a remedy hearing if settlement terms cannot be agreed. It goes without saying that compensation is likely to be substantial taking into account that what was done directly led to the loss of a firm offer of employment.
Although this is a first instance decision (and therefore not binding on other tribunals), the decision stands as a reminder of just how much damage can be caused by providing an ill-considered reference. Taking into account the risks in connection with the provision of references, some employers take the option of refusing to provide references at all, or confining information provided to what is commonly referred to as a factual reference. However, applying the approach adopted in this case, failure to provide a reference, particularly unless followed 100% in response to reference requests, could in itself be discriminatory. What really did for the employer in this case was the presence of an ulterior motive when providing the reference. This meant that once the tribunal made its findings of fact, there was no room for any suggestion that the way in which the reference was completed was attributable to simple errors or mistakes. The message is clear: when providing a reference, keep it fair and factual.
The case also provides a useful reminder that employers can still be found liable long after the relevant employment has ceased.