even if the factual statements in the reference are cor-
rect. The overall impression must be fair.
In this connection, the Employment Appeal Tribunal
has ruled that an employer was in fundamental breach
of contract justifying a successful claim of constructive
dismissal by revealing to a prospective employer in a
reference complaints about the applicant which had not
been disclosed to her. This blocked her progress in the
financial services sector.
Part 4Business resources
488
TSB Bank plcv Harris(2000)H was a savings and investment adviser with the TSB.
She received a final written warning following an incid-
ent in which she forged a client’s initials on a corrected
form entry. A number of unconnected complaints were
made against her. In accordance with standard practice
in the industry, these complaints were investigated with-
out her knowledge. She applied for another job and told
her prospective employer about the forgery. However,
TSB supplied a reference in which it stated that 17 com-
plaints had been made against her, four of which had
been valid, and eight of which were still to be investigated.
H was not offered the job. She resigned and claimed
unfair constructive dismissal. The Employment Appeal
Tribunal held that she had been constructively dismissed
and that the dismissal was unfair. The fact that H had
had no opportunity to refute the complaints was capable
of being a fundamental breach of the implied term of
trust and confidence.
If TSB supplied a reference, it had to be fair and rea-
sonable. The fact that the procedure for investigating
complaints was the standard one in the financial ser-
vices industry did not justify the misleading nature of the
reference. Bald accuracy was not necessarily enough to
make a reference reasonable. TSB could have ensured
that H was not taken by surprise by the allegations being
revealed for the first time in the arena of her application
for another job. The fact that she had intended to leave
in any case did not alter the fact that when she actually
left she had no other job to go to.
Comment. If employers give references, they must ensure
that they are not only truthful and accurate but also fair
and reasonable. It is also worth noting that under the
Data Protection Act 1998 an employee may be able to
apply to the new employer for a copy of the reference.3 What constitutes a satisfactory reference? If an
employer offers a job ‘subject to satisfactory references’
which are then taken up, who decides whether or not the
references are satisfactory? In Wishartv National Associ-
ation of Citizens’ Advice Bureaux(1990) the Court of
Appeal said it was a matter for the potential employer.
So, if the potential employer does not think the refer-
ence is satisfactory, it is not. The test is a subjective one
but presumably the employer must be reasonable and
not regard a perfectly good reference as unsatisfactory
in order to get out of the contract made subject to the
reference condition. It is better in any case not to make
an offer of any kind until references are to hand.4 Defacing references.Finally, an employee who mali-
ciously defaces his own reference or testimonial com-
mits a criminal offence under the Servants’ Characters
Act 1792.References and discrimination
The Sex Discrimination Act 1975 (Amendment) Regula-
tions 2003 (SI 2003/1657) insert into the 1975 Act a new
s 20A that prohibits discrimination after the end of
an employment (or partnership) relationship if the act
is closely related to the relationship, e.g. unreasonable
refusal to give a reference. The Race Relations Act 1976
(Amendment) Regulations 2003 (SI 2003/1626) deal
in similar fashion with race discrimination cases, as do
the Religion or Belief (SI 2003/1660), Sexual Orientation
(SI 2003/1661) and Age (SI 2006/1031) Regulations with
regard to their respective forms of discrimination. Dis-
ability cases are covered by the Disability Discrimination
Act 1995 (Amendment) Regulations 2003 (SI 2003/1673).Non-contractual duties of the employer
Before leaving the contractual duties of the employer, it
should be noted that he has other duties in regard to the
health, safety and welfare of his employees. These are
based mainly on the common law of tort and statutes
such as the Health and Safety at Work etc. Act 1974.
These duties will be considered later.
It is, however, appropriate at this point to deal with
legislation concerning the monitoring of workplace
communications.Employee surveillance
The Telecommunications (Lawful Business Practice)
(Interception of Communications) Regulations 2000 (SI
2000/2699) came into force in October 2000. They pro-
vide employers with lawful no-consent access to their
employees’ use of e-mail and other communications in
order to establish whether the use is related to business.