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The employment reference, settlement agreement and providing information to prospective employers

By Jeremy Parkinson, Solihull Employment Law team

Employers are under no obligation to give a reference to the new potential employer of a former employee. However, if the employer does agree to provide a reference, then they have a duty to both employee and recipient to try to ensure that the information given is true, accurate and fair. The employment reference must not be misleading.

DBS check

It is open for the employer and employee, on termination of employment, to go further and enter into a contract to provide a reference containing specific wording that is acceptable to both parties. But what if an employer provides information to, say, the police, in the knowledge that such information goes beyond the agreed reference wording and is likely to end up in the hands of an employer who requests a DBS (formerly known as a CRB) check? This is what happened in the recent case of Camurat v Thurrock Borough Council [2014].

Disciplinary process

In this case, Mr Camurat started work as a teacher in June 2003 with a college controlled by the council. At an early stage in his employment, it was alleged that he had used inappropriate force by holding, grabbing or pushing pupils to restrain or control them. Mr Camurat was suspended in February 2005 after six such incidents and interviewed by police but no proceedings were taken. The outcome of the college’s disciplinary process was that Mr Camurat did not receive any sanction but he was given a letter of professional advice.

In 2007, Mr Camurat faced a second disciplinary process in respect of allegations of confrontational behaviour towards certain members of staff and the use of inappropriate language to a female pupil. Again, after a hearing, he received only a letter of professional advice.

Final written warning

Not long afterwards, a further incident on 23 November 2007 led to a third disciplinary process. Mr Camurat had tussled with a pupil while confiscating his mobile phone. This was captured on CCTV. Mr Camurat was issued with a final written warning.

Following this, the parties entered into a Compromise Agreement (now known as a Settlement Agreement), whereby Mr Camurat’s employment ended on 31 December 2008. Under this agreement, Mr Camurat was to receive £28,000 and the college was also to provide an agreed reference on request. Clause 10 of the agreement read as follows:

“Any written reference which any third party may request the Employer to give in relation to the Employee will be in the terms set out in Schedule 2. Any reference given orally will be consistent with the terms and spirit of the agreed reference. This Clause is subject to the proviso that the Employer will cease to be obliged to provide a reference, whether written or oral, in the agreed terms if after the signing of this agreement new facts come to the Employer’s attention which make the agreed reference substantially and materially incorrect.”

Settlement agreement

Much of the reference in Schedule 2 of the agreement was positive. However, it stated that on occasions Mr Camurat had been spoken to regarding his interaction with some pupils and that he had received a final written warning in 2008 for grappling with a pupil while trying to confiscate a mobile phone.

Before his employment ended, Mr Camurat obtained an Enhanced Criminal Record Certificate, which disclosed nothing untoward. However, after his departure, the college disclosed to the police a chronology detailing all the disciplinary issues.

When Mr Camurat then tried to obtain new employment at a different school, this chronology was reproduced on the Enhanced Criminal Record Certificate. Mr Camurat claimed that this was the reason he lost his new job. It took him nearly five years to have the certificate cleared.

Breach of contract

In 2014, Mr Camurat brought a claim for damages for misrepresentation, breach of contract, negligence and malicious falsehood.

The court agreed that the college had statutory duties to safeguard and promote the welfare of children. Furthermore, under the Safeguarding Vulnerable Groups Act 2006, the college was obliged to inform the Criminal Records Bureau if it believed that a person might put a child at risk of harm.

The issue for the court was whether the college owed the claimant, Mr Camurat, a duty of care when making safeguarding disclosures, such that any response to the police would not differ materially from the terms of the reference agreed in Schedule 2 of the Compromise Agreement.

The court found that the college owed no such duty of care, as this would discourage people from assisting the police on safeguarding issues. Nor was there any express or implied term in the Compromise Agreement that any disclosure to safeguarding bodies would be in the spirit of an agreed reference, as this would be void as a neglect of the defendant’s duty.

Practical tips for employers

The Camurat case demonstrates that an employer, under a statutory duty to safeguard the welfare of children, is not precluded by an agreement entered into with the employee from providing information to the police (or to other safeguarding authorities) about the employee that goes beyond the wording agreed by the parties, if the employer has genuine concerns about the employee’s suitability for working with children.

The case also serves as a reminder to employers to ensure that settlement agreements are carefully drafted to make clear that the employer is not prevented from complying with its legal obligations.

For more information on any of the issues raised in this article or to discuss appropriate terms for a settlement agreement, contact Jeremy Parkinson on 0121 683 8413 or email jparkinson@lyonsdavidson.co.uk

Posted on Oct 28th, 2014 by Lyons Davidson