Safeguarding responsibilities can override an agreed reference
Safeguarding responsibilities can override an agreed reference, but other employers risk breach of contract claims if they deviate from the words negotiated.
The case of Camurat v Thurrock Borough Council considered whether not sticking to a reference agreed as part of a settlement agreement could amount to a breach of contract or a breach of the employer's duty of care to the employee to exercise reasonable care and skill in providing a reference.
Camurat was a teacher at a school run by Thurrock Borough Council. Several allegations of misconduct were made against him relating to 'inappropriate use of force .... in respect of his dealing with pupils'. Two allegations were investigated and letters of professional advice issued to him. However, the final incident led to him receiving a final written warning and agreeing an exit from the school rather than returning to teach.
Camurat left the school by way of a compromise agreement (now called settlement agreements). The compromise agreement contained an agreed written reference, which is not unusual when setting out the terms on which an employee is to leave. A clause within the compromise agreement stated that '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'.
Subsequently, the local authority referred him to the Independent Safeguarding Authority (which decided he should not be barred from working with children). The employer also provided information to Essex Police detailing when during his employment the misconduct allegations had been made. The police reproduced this chronology, with some omissions, in the Enhanced Criminal Record Check (ECRC) for Camurat. As a result, he lost a teaching job at another school and only succeeded in getting the ECRC cleared five years later.
Camurat brought civil proceedings in the High Court against the local authority. The claims were for breach of contract (in relation to the settlement clause), negligence, misrepresentation and malicious falsehood. All the claims were dismissed, although Camurat has been given permission to appeal to the Court of Appeal.
The High Court held that the settlement clause referring to third parties could not require the local authority to 'decline a request by the police or anybody interested in safeguarding issues'. The employer was under a statutory duty to provide disclosure for safeguarding purposes and it would be neglecting this duty if it restricted itself to the reference in the compromise agreement. Any such restriction would, therefore, be void.
With regard to the negligence claim, the judge explained that if the employer's duty of care to Camurat prevented it from disclosing such information, then it would potentially be putting the safety of children at risk, and would also be discouraging those who had a duty to provide assistance to the police in relation to safeguarding matters.
This case will assist those employers who have a duty to provide certain information to the police and other safeguarding bodies, such as those operating in sectors which deal with children and vulnerable adults. They will know they are able to comply with their statutory safeguarding duties without fear of breaching their duty to the employee.
However, employers should be wary of relying on this judgment when providing references outside of those sectors. It is important to remember that although preventing the disclosure was held to be contrary to public policy, this will be a limited argument for many employers.
When agreeing a reference as part of a settlement agreement, it is not usually advisable for employers to deviate from the wording agreed, as to do so could amount to breach of contract. Employers should, however, ensure the agreement allows for amendments in the event that new information comes to light which means the reference would be inaccurate or misleading for prospective employers.
This article first appeared on CIPD.