In a competitive employment market, a reference could mean the difference between landing a job offer or not.

But the subject of references can be a difficult topic to raise – and the content of a reference can sometimes be misunderstood or baseless –  with serious consequences for the candidate.

What should employee know about references

1. Prospective employers will ask for a reference for two reasons: either to verify what a candidate has said on their application form or at interview – or to gain an opinion on the candidate’s suitability for the role. They will often make an offer of employment conditional on the receipt of satisfactory references. Otherwise the offer of employment could be withdrawn or further references requested.

2. An employer does not have a general legal duty to provide a reference, but it is rare for them to refuse. In some cases, there may be a regulatory or contractual duty for the employer to provide a reference – especially those carrying out regulated activities such ad financial advisers.

3. The law relating to employee references applies equally to agency and temporary staff. However, some employers may have a policy of not providing references for agency staff, in which case you will have to ask the agency to provide one.

4. If an employer provides a reference, they will owe a duty of care both to the employee and to the recipient for the contents of that reference. A reference must be true, accurate, fair and must not give a misleading impression. However, it does not have to be full and comprehensive. Basic factual references are common.

5. References are usually in written form but can be given verbally too. It is best practice to provide a written reference to ensure it cannot be misinterpreted or misunderstood by the recipient. With oral references it can be much harder to prove what is said and therefore harder to prove whether the reference was true, accurate, fair and not misleading.

6. A prospective employer can ask a series of specific questions, which the former employer may answer but it is up to the employer to decide what information to provide. This may include the employee’s length of service, positions held and competence in the job, honesty, time-keeping, and reason for leaving.

7. If you suspect you are at risk of being provided with a negative reference, it would be a good idea to discuss your concerns with your line manager to head-off the effects of any negative comments.

8. If your current employer will not provide a detailed and positive reference,  a prospective employer can be asked to take into account additional personal references to those requested.

9. To avoid potential disputes over the content of references, be aware that employers often limit the content of the reference to the dates of the employee’s employment, their job title and a brief description of the duties the employee carried out. Some employers also include legal disclaimers when providing a reference seeking to limit any liability they may be incurring.

10. You no longer have a right to see the reference when making a Data Subject Access Request.

If you consider that a reference is not true, accurate and fair – or  gives a misleading impression and you have suffered a loss, such as the withdrawal of a job offer, as a result, then you should seek legal advice. You may be able to pursue a claim for negligence against the provider of the reference.

Acas Guide References

14th December 2021

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