Guardian Assurance plc

Anne has worked for 5 years as a nursery nurse in Krusty's Nursery, and she worked under Jill who I hope was her line manager because when Anne applied for a new job jill gives out her reference. Anne has recently fallen out with Jill and has applied for a job with another nursery, which has asked Jill for an employment reference. Jill has provided a reference to the other nursery which states 'Anne has been employed by our nursery for five years. There have been several complaints by parents that she is unkind to their children'.

Anne has not been offered the job and was shocked when she saw the reference. According to what was said in this case Anne was not even aware of all complaints made on her so she seeing it in her reference was a big shock for her. There is an implied term to take reasonable care in compiling or giving a reference and in verifying the information on which it is based. An employer may be liable to the employee or former employee for any economic loss suffered as a result of a negligent misstatement, just like in the case of Spring V Guardian Assurance plc [1994] IRLR 460.

In that case, the House of Lords held by a majority, with Lord Keith dissenting, that on giving a reference to an ex-employee, in response to a request by an identified prospective new employer, the former-employer owes a duty of care to the former-employee, that the breach can give rise to a claim for pure economic loss and that the possibility of such a claim is not excluded by considerations of public policy which favor candor in references.

In the spring case, the reference (for a man who was employed in the financial services industry) was about as bad as it possibly could have been. After describing his alleged selfishness towards colleagues, the reference continued. Where an employer decides to give a reference, there is a duty of care to provide a reference that is true, accurate and fair. By fair the court of appeal meant in terms of the overall impression given of the employee as well as being factually correct in its component parts.

The EAT held in TSB Bank plc v Harris [2000] IRLR 157 that an employer was entitled to resign and claim constructive dismissal on the basis that a reference provided to a prospective employer was in breach of the implied duty of mutual trust and confidence. Ms Harris's employer provided a reference limited to the factual history of Ms Harris's employment. It recorded that there had been 17 complaints against her, 15 more than she knew of, this is just the same problem Anne is having she never knew about the complaints that parents made about her not been a nice nurse to the children.

An advice I can give to Anne is that she has every right to claim that these been a breach of reasonable duty of care in giving reference from her employer and she claim an economic loss she must have had since she lost that job she apply for. The employer Jill should have made Anna aware of the complaints before the reference had been giving in order to allow her the opportunity to address the damaging information which was on her file. The reference supplied was unfair and misleading and not prepared with due skills and care.

(2) Eileen has worked in a call centre for four years. She was given a final warning for this behaviour and the manager saw again performing the same act and He immediately called her in for a meeting and told her that in view of her admitted behaviour, and the fact that she had recently had a final warning for this, he had no option other than to dismiss her, now in this case Eileen feel his been wrongfully been dismiss and thinks of claiming unfair dismissal.

If an employer dismisses an employee without following the relevant statutory in full that dismissal is automatically unfair. The employer cannot argue that he would have dismissed in any event, even if he had followed the statutory procedure and that therefore the dismissal is fair. In this case at hand the manager didn't follow the normal procedure of dismissal because Eileen was only giving one warning then dismiss, according to the procedure it should be one written warning and final warning then dismissal, and each warning should last at least 12 months.

In this case Eileen last warning was 15 months ago which means she was out of the warning period before she was dismissed. An employer who has been continuously employed for at least one year is entitled to request that he be provided by his employer, within 14days of the request, with a written statement of the reason for his dismissal; the statement is admissible in evidence in any proceeding. If the employer unreasonably fails to comply with the request or the particulars given are inadequate or untrue, the employer may present a complaint to an employer tribunal.

When looking at the wrongful dismissal we will talk about Exclusions and qualifications, to measure this procedure we must consider the employee exclusions and qualification, in this case Eileen has been employed for four years and EAT states you must be employed for more than one year, also she had a contract working call center. Second procedure to consider is was there a dismissal? Yes because she was dismisses at the spot when she was cut in act. Third action to be considering was did the ER act reasonably in dismissing?

No he didn't act reasonably in dismissal because before dismissing an employee they should be giving a formal notice of meeting which will be lead to their dismissal, also she should have received two warning before dismissal and the last was that she was not even giving an opportunity to appeal against the decision. So Eileen has got every right to claim that it was unfair dismissal and if this case should be taken to tribunal the remedies she should be looking to get is Re-instatement or Re-engagement.