Can an employer give a bad employment reference?

References are often asked for in job applications. There is usually no legal obligation to provide a reference. 

However, employers that give references must make them fair and accurate. Accordingly, employers who ask for references must handle them fairly and consistently.

Employment Solicitor Chris Dobbs looks at whether an employer can give a bad reference for a previous employee, delving into the the legality of employment references.

Does an employer have to give a reference? 

A previous employer can usually choose whether they want to provide a reference or not and can also choose how much information they want to provide. Previous employers may choose to provide a few basic facts about the job applicant and nothing more.

A job applicant's previous managers and colleagues may also be happy to provide more detailed references. Employers should have a policy to help them handle reference requests, telling them what information they and their employees can provide.

Only certain industries such as those regulated by the Financial Services Authority are required by law to give a reference.

Can an employer give a bad reference?

Employers can usually choose whether to give a reference, but if they do it must be accurate and fair. References must not include misleading or inaccurate information. They should avoid giving subjective opinions or comments which cannot be supported by facts.

Some references therefore might expose the fact that a job applicant is not suitable for the new role that they are applying for, because it might suggest that the applicant doesn't have enough experience of relevant responsibilities.

Other issues can be highlighted, for example if the reason for leaving the current job is different from the reason that the candidate put in their application, or that the job applicant didn't describe their current job responsibilities or title properly.

Chris Dobbs, Solicitor in our Employment Team, says "Potential employers should remember that a referee may not provide a reference or might inaccurately suggest the applicant is unsuitable. In these circumstances, I would advise discussing any issues raised with the candidate directly, before withdrawing or changing a job offer. 

A consideration could be to prolong a probationary period within the employment contract for example, if there are still concerns surrounding ability to perform the new role well enough."

Can the applicant see a copy of the reference?

If there is an issue with the reference provided, an applicant does have the right to request a copy of the reference, under the new GDPR regulations. This request must be made in writing and should be made to the author of the reference.

If an external job applicant believes a reference provided for them was inappropriate, they may be able to claim damages in a court, but the job applicant must be able to show that the information was misleading or inaccurate and that they have suffered a loss such as withdrawal of a job offer. 

What must a reference include?

Acas have recently released new guidance on employment references. As part of this guidance, Tom Neil, an Acas Senior Adviser, is quoted in saying "The job market can be very competitive so it is vitally important for job applicants and employers to know what the legal requirements are around work references."

What is the guidance for employer references?

The guidance covers matters such as:

• what a reference must include
• whether or not a reference must be provided
• whether an employer can give a bad reference
• problems with references
• job offers and references

The full guidance can be accessed here.

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