ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: ADJ-00035779
Parties:
| Worker | Employer |
Anonymised Parties | Worker | Employer |
Representatives | INMO | Employee Relations |
Dispute:
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00046922-001 | 01/11/2021 |
Workplace Relations Commission Adjudication Officer: Kara Turner
Date of Hearing: 17/01/2023
Procedure:
In accordance with section 13 of the Industrial Relations Acts 1969, following the referral of the dispute to me by the Director General, I investigated the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.
Background:
The worker was offered a role with a potential employer following interview, subject to satisfactory references. The offer of employment was subsequently withdrawn, and the worker advised by the potential employer that her reference was unsatisfactory. This dispute concerns information provided by the employer in the employment reference, which was given by the employer to the potential employer. The worker sought withdrawal of the reference in issue, a specified sum for loss of earnings and compensation. |
Summary of Worker’s Case:
The worker was employed as a clinical nurse specialist (CNM2) with the employer from May 2018. She was appointed as candidate Advanced Nurse Practitioner (cANP) in September 2018 and subsequently to a CNM2 post in March 2020. The worker applied, and was interviewed, for a clinical nurse manager (CNM3) role with a potential employer. She was offered the position in October 2020 subject to satisfactory references. In November 2020, the worker was advised the offer was withdrawn due to unsatisfactory reference checks. The worker obtained a copy of the reference provided by her employer to the potential employer. The worker disputed information detailed therein which referenced shortcomings in two skills areas. The worker lodged a grievance with her employer on the basis that the information provided was wholly inaccurate and unwarranted. Following a stage 3 grievance meeting in July 2021, the employer advised that it did not accept the worker’s grievance to be justified. As the matter could not be resolved locally, the dispute was referred by the worker to the Workplace Relations Commission. The worker submitted that the employer had never raised with her any issue regarding the two skills areas and that the information provided by the employer in the employment reference was inaccurate and unfounded. The worker further submitted that such information cost her a promotional opportunity, delayed her career progression, caused her undue stress and a loss of self-confidence. The worker’s representative referred to case law in support of its submission that the employer had a duty to take reasonable care in providing an accurate reference and verified information and the implications of an inaccurate and unfounded reference.
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Summary of Employer’s Case:
The employer maintained that it provided a reference to the potential employer which was a true and accurate reflection of the worker’s ability at the time. The reference was completed by the worker’s line manager who reviewed the CNM3 post advertised with the potential employer and consulted with the employer’s Director of Nursing regarding completion of the employment reference for the worker. The employer submitted that the reference provided was not negative of the worker, it did not indicate an unsatisfactory evaluation of the worker’s skills and it complimented certain skills. It rejected any assertion that the reference provided was career restricting. The employer referred to a subsequent reference it provided for the worker in July 2021 which was used by the worker to obtain a CNM3 post with a different employer. The employer was supportive of the worker’s application for this CNM3 role as it was more aligned to her skill set. |
Conclusions:
In conducting my investigation, I have taken account of all relevant submissions and information presented to me by the parties. The employer was requested to provide an employment reference for the worker in October 2020 in the context of the worker’s application for a CNM3 role with another employer. The worker’s line manager was the nominated referee. The line manager confirmed that she reviewed the role profile for the CNM3 post for the purpose of providing the reference. She considered the CNM3 role to be an autonomous role involving clinical decision-making skills and consulted with the employer’s Director of Nursing as she did not have direct experience of the worker’s skills in this regard. The worker’s role at the material time and in respect of which the line manager had oversight was non-patient facing and involved audit duties. The employer does not have a policy or procedure governing the provision of references. The part of the reference at issue and the subject of this dispute concerns the information inserted by the employer on the employment reference under a heading ‘further relevant information’. The further relevant information provided by the employer referred to two standard questions on the reference form asking whether the employer would re-employ the worker and whether the employer would recommend the worker as a person suitable for the particular post and service. By way of further relevant information, the employer stated that the worker’s “communication skills need attention along with her clinical decision making skills where she still requires prompting and direction” and concluded that the worker will require some support in these areas in relation to a CNM3 role. The parties differed as to the level and significance of clinical decision-making skills involved in a CNM3 role, in general, and with respect to the particular role advertised with the potential employer. I do not consider it appropriate or necessary for me to resolve this difference between the parties. In my opinion it is relevant insofar as it gave context to the line manager’s view, when completing the employment reference for the worker, that the CNM3 role advertised was an autonomous role which would involve significant clinical decision-making responsibility. An employer is not under an obligation to guarantee the absolute accuracy of an employment reference, but it does have a duty to take reasonable care as to factual content and to verify the information on which the reference is based. I accept that there was no ill-will or malice on the part of the line manager or employer in completing the employment reference for the worker. I have carefully considered the employment reference provided by the employer and note that it indicated satisfactory to very good skills in general and satisfactory attendance on the part of the worker. Regarding the further relevant information inserted by the employer, I am not satisfied that reasonable care was taken by the employer as to its factual content for the following reasons. The information inserted included the statement that the worker’s clinical decision-making skills still require prompting and direction however it was confirmed to me by the employer at the hearing that there were no clinical making decision skills being undertaken by the worker from December 2019 onwards. The line manager said that the reason she consulted with the Director of Nursing when completing the reference was because she had concerns about the worker having failed the cANP and the implications of this on providing a reference for the CNM3 role. I also note in this regard the employer’s submission that the worker’s experience with it was more audit related work. I find that the line manager did not have direct or current experience of the worker’s clinical decision-making skills and am of the view therefore that the reference to the worker’s clinical decision-making skills related to the worker’s failure of the clinical practice module on the cANP course in September 2019 and/or to historical duties prior to the worker’s appointment to CNM2 in 2020. I am not satisfied that it was factually correct to state that prompting and direction was still required in this area as the worker had no clinical decision making authority or duties at the material time. It was open to the employer to state that the worker had not completed the cANP course and/or that the worker was not currently undertaking clinical decision-making duties, but it did not do so. I further note that under a section headed interpersonal communications, the employer marked three different communications areas as satisfactory. Under a different section however, namely the further relevant information section at issue in this dispute, it stated that the worker’s communication skills need attention. Whilst the line manager said that she had discussed communication skills with the worker in March 2020, I am satisfied that this discussion took place in the context of the worker having recently taken up the role of CNM2 on the line manager’s team and that the discussion concerned supports in the role. I consider therefore the statement that the worker’s communication skills need attention, when considered against communication skills marked satisfactory elsewhere in the reference, to have been inconsistent and unverified. It was submitted on behalf of the worker that the CNM3 job offer with the potential employer was withdrawn because of the unfounded comments made by the employer in the employment reference. The employer’s position was that it provided a reference which was a true and accurate reflection of the worker’s ability at the time. Based on the information before me, I find that the employer provided a reference to the potential employer which contained inaccurate and unverified information regarding the worker and that this was a factor in, if not the reason for, the CNM3 job offer with the potential employer being withdrawn. Accordingly, I recommend that the employer takes whatever steps necessary to withdraw the employment reference provided by it to the potential employer in October 2020. I further recommend that the employer pays to the worker the sum of €3,500 by way of compensation for its failure to exercise reasonable care as to the factual content provided by it in the employment reference, any delay in career progression as a result, and for undue stress to the worker. These recommendations are made in the unique and particular circumstances of this dispute and in resolution of same. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
For the reasons stated above, I find that the dispute was well-founded and I recommend as follows:-
- (i) the employer takes the necessary steps to withdraw the employment reference it provided to the potential employer in October 2020, and
- (ii) the employer pays the worker €3,500 in compensation and in full and final settlement of this dispute.
Dated: 3rd March 2023
Workplace Relations Commission Adjudication Officer: Kara Turner
Key Words:
Industrial relations dispute – employment reference – duty of care – factual content – loss of opportunity |