ABG Employment Newsletter – May 2011

References and other statements about ex-employees

In the case of Spring -v- Guardian Assurance plc in 1994 the House of Lords established that an employer who provides an inaccurate reference about a former employee may be liable to the ex-employee or the individual’s new employer for breach of the duty to take reasonable care. So if the ex-employee loses his new job as a result of the negligent reference, the former employer may have to compensate him for the financial damage suffered as a result, for example, loss of wages.

In the more recent case of McKie -v- Swindon College the High Court has extended the duty of care to other circumstances in which a former employer provides inaccurate information to a new employer. In this case the College had sent an email to Mr McKie’s new employer saying it had had safeguarding concerns about him and that there had been staff relationship problems. On receipt of this email Mr McKie’s new employer dismissed him. He then sued the College for loss of wages relying on the tort of negligent misstatement

The High Court upheld his claim, finding that the contents of the College’s email were largely fallacious and untrue and that the person sending the email had no personal knowledge of Mr McKie and had relied on comments made to him by a colleague. The Court described the College’s procedure in respect of the email as slapdash, sloppy and failing to comply with minimum standards of fairness.

This case highlights the degree of care which must be taken when writing references or providing other information to prospective or subsequent employers about ex-employees.

No wages for employee remanded in custody

In the case of Burns -v- Santander UK plc the Employment Appeal Tribunal has upheld a tribunal’s decision that an employee who had been remanded in custody pending a criminal trial was not entitled to be paid his salary by his employer.

The employee had been arrested and charged with a number of criminal offences. He was remanded in custody pending trial which took place 6 months later and resulted in his conviction on 2 offences. He was given a suspended sentence.

During the 6 months he spent on remand the bank had kept his job open but stopped paying his salary. Following conviction the bank took disciplinary proceedings and he was dismissed.

The employee brought an unlawful deductions from wages claim arguing that he had been entitled to be paid notwithstanding that he had not attended work. He tried to argue that his being prevented from working as a result of his remand was unavoidable.

The Tribunal rejected his claim and the EAT has agreed with the Tribunal’s decision. In the words of the Tribunal, although he had not been convicted of any offence when the bank decided not to pay him, he had conducted himself in such a way that, according to the Judge in the criminal court, he should be deprived of his freedom and therefore deprived of his right to attend work.

Refusal of time off to attend mosque for Friday prayers

In the case of Cherfi -v- G4S Security Services Ltd the EAT has ruled that the employer was not guilty of unlawful indirect discrimination when it refused to allow a Muslim employee who was employed as a security guard to take time off on Friday lunchtimes to attend at a local mosque for prayer.

In this case the employee was employed as a security guard at a client’s site. He was in the habit of regularly leaving the site on Friday lunchtimes to attend the mosque, but was told he could no longer do so. This was because G4S was contractually obliged to ensure a specified number of security guards were present throughout operating hours.

G4S offered to change his shift pattern so that he worked Monday to Thursday with the option of working on a Saturday or Sunday. However, the employee did not want to work at the weekend. He brought an indirect religious discrimination claim, but this was rejected by the tribunal and the EAT who found the employer’s actions in refusing time off were objectively justified.

Note that it was of particular importance in this case that the company had offered Mr Cherfi weekend work so that he would not suffer financially if he chose not to work on Fridays and he had not been pressured into working weekends. The company’s actions were justified because of its operational needs through the requirement to provide security guards for its client and it was at risk of losing its contract if it failed to do so. It was also significant that there was a prayer room available to Mr Cherfi at the site where he worked so he was not prevented from participating in Friday prayer, although he could not attend prayers in congregation.

The comments in this note are of a general nature only. Full advice should be sought on any specific problems.

Christopher Gigg 
[email protected] 
+44 (0)115 934 3310

David Hardstaff
[email protected]
+44 (0)115 934 3323

Kathryn Meir
[email protected]
+44 (0)115 934 3308