Settlement Agreements and References

Settlement Agreements often involve an agreed reference so employers have a duty to provide a reference under the agreed terms and in line with sprit of the agreed reference. Employers who fail to do so may have both breached the contract and breached the duty of care to the former employee to exercise reasonable care and skill in providing a reference.

Although on the face of it, it appears simple what was agreed in the settlement agreement must be adhered to, employers may have conflicting duties with regards to disclosure requirement to Independent Safeguarding Authority and or the police. The police in turn may be required to disclose such information under an enhanced Criminal Record Check.

The High Court has ruled that where conflicting duties exist, the terms of a settlement agreement must not prevent an employer from disclosing relevant information to police or anybody interested in safeguarding issues. In addition, employers have a duty to disclose relevant information for safeguarding procedures.

In a recent case, an ex employee’s settlement agreement with a previous employer, if fully enacted, would have prevented a full and proper background check to take place; A requirement for him to commence teaching children at his new employer.

Employees should be aware that this duty to provide information trumped what was agreed in the settlement agreement as it dealt with children and vulnerable adults. Where references do not impact children or young adults, the terms of a settlement agreement will take precedence.

Employees who work in the public sector may encounter further hurdles with an employers’ duty to any argument that withholding information may be contrary to the public good. Moreover employees who work for public bodies, the public bodies have additional common law duties with regards to providing references.

Employees should be aware that where an employer deviates from an agreed reference the employee may be able to pursue an employer for a breach of contract

If your chances of securing new employment have been damaged by a previous reference please do get in contact with a member of team.

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