It is no surprise that there is a common law duty of care owed by employers to their employees, but many employers may not appreciate that the duty of care is also owed to former employees when their prospective employers request references.
Further, the standard of care in such a situation had not previously been considered by the Singapore Court of Appeal until a decision in July 2016 where the Singapore Court of Appeal clarified the principles and factors that the Singapore courts will apply and take into account.
- Employers owe a duty of care to their employees, whether former or present, when preparing a performance reference. This does not change even if the applicant was an ‘agent’ rather than an employee, because the factors that lead to a finding that an employer owed its employee such a duty of care may also be present in the context of some relationships between principals and agents.
- When writing a reference for its employee, an employer has to exercise reasonable care to ensure that
a) the facts stated in the reference were true; and
b) any opinions expressed there were based on, and supported by, facts which were true.
- The employer also has to exercise reasonable care to ensure that the reference does not give an unfair or misleading overall impression of the employee, even if the discrete pieces of information which it contained were factually correct.
- The employer is required to exercise reasonable care to disclose any further information relating to information that had already been provided, where to withhold such further information would render the information already disclosed incomplete, inaccurate or unfair.
- Subject to the foregoing qualifications, the employer is not required to give a full and comprehensive reference or to include all potentially material facts about the employee in the reference.
- An employer should not include in the reference, whether explicitly or implicitly, any mention of complaints or other allegations against the employee that the latter had no knowledge of and had not been given an opportunity to explain or defend himself against.
- In assessing what constituted reasonable care, regard would be had to the gravity of any adverse suggestion or inference contained in the reference. The greater the gravity of any adverse suggestion or inference, the more closely would the employer’s conduct be scrutinised to ascertain whether it had taken reasonable care to ensure that the suggestion or inference in question (a) was based on facts which were true and accurate; and (b) was, in view of those facts, fair and reasonable.
While this decision is much welcomed for adding some clarity to the question of standard of care, the real question is how far does it ease the role of the human resource personnel and management team of large organisations who may face numerous requests for references on a regular basis?