August

Drafting references can be a legal minefield for employers. This has not been helped by recent confusion over whether ex-employees are protected against victimisation if they receive a negative assessment. Generally, there is no legal obligation on an employer to provide a reference for an ex-employee. An employer's policy on whether or not to give a reference needs to be consistent: a decision to provide a reference to some but not all ex-employees could be discriminatory under the Equality Act 2010 (the Act) if this is linked to protected characteristics. Where an employer does provide a reference it has a duty of care to the ex-employee and must take reasonable care in the preparation of the reference, which must be true, accurate and fair and not give a misleading impression. While the reference does not have to be comprehensive, it must not be misleading through omission. An employer may be liable for negligent misstatement where its reference gives an inaccurate impression and in extreme cases it may also be liable in the tort of deceit. Employers would be well advised not to refuse to give a reference just because the employee has made allegations, brought proceedings (or given evidence in connection with such proceedings) under the Act.

"Three people who ran a fake college have been jailed for a total of 22 years, following an investigation. Sohail Akhtar, Noasheen Muhammed, and Waqar Bhatti, were all found guilty of conspiring to assist a breach of immigration law following a 3-month trial. During the trial, a jury heard how Bhatti set up Middlesex College in 2004 and then employed his friend Akhtar and Akhtar's sister Noasheen Muhammed to run operations. The college was offering courses in anything from fashion to law at undergraduate and post-graduate level. The college claimed that some of these courses were being run on behalf of genuine universities. The college ran only a small number of courses in basic English, and was largely a front for conning genuine students who wished to study in the UK and the authorities into granting visas for bogus students. At the time, the college claimed to have around a thousand students enrolled. Officers discovered that the trio had printed the signatures of genuine former members of staff on false qualification certificates and enrollment forms to add a cover of respectability. ""This was an extremely long and complex investigation into three individuals who spent years conning both legitimate students and the authorities,"" said Rob Allen, London's criminal and financial investigation team."

"The Supreme Court has ruled that companies cannot institute mandatory random alcohol testing of employees. ""Random alcohol testing is a humiliating invasion of an individual's privacy that has no proven impact on workplace safety,"" said Dave Coles, president of the Communications, Energy and Paper Workers Union of Canada. In 2006, Irving Pulp and Paper Limited in Saint John, N.B., unilaterally adopted a policy of mandatory random alcohol testing for employees in safety sensitive positions. CEP Local 30 filed a grievance challenging the policy after a worker was chosen randomly by a computer program to take a breathalyzer test. The test showed a blood alcohol level of zero but the worker said the test was humiliating and unfair. ""Our union's long-standing position is that the best way to resolve social problems such as alcohol or drug abuse is to address the root cause of the problem"", said Coles. ""Rather than attack the victim, Corporate Canada needs to do a better job in offering employee assistance programs, drug education and health promotion programs."""