References

Does my employer have to give me a reference?

No. There is no legal obligation from your employer to provide you with a reference – except in some regulated industries, or where it is a term of a Settlement Agreement or where it is custom and practice to do so.

Can my employer give me a bad reference?

Yes, as long as they genuinely consider it to be true and accurate and have reasonable grounds for that belief.

Can I see a copy of my reference?

You can ask your current employer for a copy of any reference that they have received or given. This is called a Subject Access Request and is a right that you have under the Data Protection Act. You usually need to pay a fee of £10 for such a request.

If I do get a reference, what will be in it?

Almost all references are factual and limited to your name, dates of your employment, and job title. Sometimes, the reason for leaving is included.

You can always ask your ex-employer for a more comprehensive reference. In some circumstances, you may be able to obtain a ‘personal’ reference from the individual line manager that you worked with.

If your employer does give you a reference, they have a duty to make sure it is accurate and not misleading. This means that if, for example, you were subject to disciplinary action from your old employer, this could form part of the reference.

If you have had long periods of work due to illness, you will not want this reflected on your reference, so it is best to find out what your employer’s policy is and try to ensure that sickness records are not included. Most employers won’t mention your time off – especially if your absence was due to a disability.

You also need to make sure your employer is giving you your correct job title in the reference. There have been many instances where this is not accurately reflected, especially where you have been promoted over the years or changed roles.

You may be unhappy for the reason you have left to be stated in the reference – for example if you were made redundant, as a result of performance issues or because of ill-health. It is best for this to be addressed /employee/redundancy/before, or at the time of your departure.

Finally, you need to make sure you know from whom your new employer should ask for a reference. This is usually your HR department, but not every employer has one and it is always better to be prepared and have an individual name to pass on if necessary.

What if my reference is wrong?

If your reference isn’t accurate, it may be worth speaking to your previous employer to find out if they can correct it. You may also consider speaking directly with any prospective employers to explain your reference situation.

There are times when you will not be able to resolve the problem yourself. This is where we come in.

Negligence

Employers who fail to make sure the information they give about you is accurate could be liable for negligence if you suffer loss or damage as a result.  You may be able to bring a claim in the County Court. To do so, you must be able to show that the information in the reference is false or misleading, and  has had (or is likely to have) a negative impact on your future employment prospects and that your former employer had failed to take reasonable care.

Discrimination

If the reason you were given an incorrect negative reference (or were not given a reference at all) is because of your age, sex, race, religion, belief, or sexual orientation, or because you were pregnant or on maternity leave, then your employer might be discriminating against you and you could have a claim in an Employment Tribunal.

Defamation

An untrue statement that belittles your reputation may amount to defamation.

An employer may be able to defend themselves (even if the reference is untrue) provided they believed the information in the reference was correct and was provided without malice.

Employers must therefore be able to justify and support any comments made in a reference and show that they honestly believe that the contents of a reference are true.

Malicious falsehood

You will need to show that the reference provided contained information that was not true and was made maliciously.

Breach of contract

There may be a clause in your contract obliging your employer to give you a reference. If there is, and you believe that there has been a breach of this clause, you may be able to bring a claim in the Employment Tribunal.

What do I do now?

This is where we come in. Employment law is all we do.

Talk to us and we will explain your options. We can help you to enforce your employment rights.

It can often feel like your employer holds all the power.  They are likely to have experienced HR professionals or a solicitor working in the background.  That’s why you need the best support and advice available.  You need a specialist employment lawyer – one who will push for the best outcome for you.

We understand how it feels. We have helped hundreds of employees and because we act for businesses too, we know the tactics you’re likely to face from your employer.  We know all the tricks in the book.

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