Getting A Work Reference: Rights and Obligations

emily gordon brown
Emily Gordon BrownLegal Assessment Specialist @ Lawhive
Updated on 8th July 2024
getting-a-work-reference

If you receive a job offer, it's usually conditional based on satisfactory references. However, for some, this can be a source of anxiety and confusion.

One common area of confusion is around whether employers have to provide a reference and what they can say.

In this article, we'll explore all aspects of employer references, covering legal obligations (like when employers have to give them), the typical content of references, and how they can impact your career.

Do employers have to provide a reference?

In the UK, employers aren't legally required to give a reference for an employee or ex-employee unless there's a written agreement to do so (for example, a term in a settlement agreement), or it's in a regulated industry (like financial services) where references are mandatory.

What should be included in a job reference?

If an employer chooses to give a reference, it must be fair and accurate.

They generally include:

  • Dates of employment;

  • Titles of the jobs held;

  • A summary of the employee's performance and skills;

  • Comments on the employee's attendance and reliability;

  • An overview of the employee's behaviour and conduct;

  • Reasons why the employee left the company.

Some employers, however, might simply confirm an employee's dates of employment and job title to avoid potential legal issues that may arise from more detailed comments.

Can an employer legally give a negative job reference?

An employer can legally give a negative job reference but it must be truthful and accurate and should be supported by evidence. Above all, employers must be fair and not give a misleading impression of the employee.

A negative reference can include details about an employee's poor performance or conduct, provided that these statements can be backed up. However, employers must be careful not to make defamatory comments that could damage the individual's reputation unjustly.

If an employee believes that a reference provided by their employer is misleading or inaccurate, they might have legal recourse for potential claims such as defamation, discrimination, or breach of contract.

How can I find out what my employer said in my reference?

Under GDPR, you have a right to access personal data that an organisation holds about you, which can include job references.

So, if you wanted to see what your employer said in the reference, you could make a subject access request to either the employer who provided the reference or the employer who received it.

If you choose to do this, the request must be in writing, and the organisation has one month to respond to your request.

You can, of course, as an alternative just ask the new employer to share the reference with you. This may be quicker but they are not legally required to provide you with a copy

What should I do if I get an unfairly negative reference?

If you believe you've received an unfairly negative reference from a former employer, reach out to the person who wrote it and request a discussion. It's possible that there was a misunderstanding or error that can be corrected amicably. Explain why you believe the reference is unfair and ask if they would be willing to change it.

If this doesn't work or isn't possible and the reference is causing significant harm to your career, consider seeking legal advice to understand your rights and options. An employment lawyer can advise whether you have a claim for defamation, negligence, or breach of contract depending on the contents of the reference and how it has impacted your job prospects.

What's the difference between a bad reference and a defamatory reference?

A bad reference and a defamatory reference are quite different in their implications and potential consequences.

A reference might be considered bad but not unlawful if it is factually accurate but highlights negative aspects of your work history or performance. For example, it might say that you missed targets or were regularly absent.

On the other hand, a reference becomes defamatory if it contains false information that harms your reputation or prospects.

If you suspect a reference is defamatory, you might consider legal advice to explore the possibility of a defamation claim.

Can you lose a job offer because of a bad reference?

If a reference provides information that significantly undermines your suitability for a job, it can lead an employer to reconsider a job offer.

In practice, however, how a reference affects a job offer can vary. Some employers might put more stock into a negative reference if it raises serious concerns about your ability to perform in the new role, while others might take it as one part of a broader evaluation alongside the interview, skills tests, and other references.

If you're concerned about what might be said in your references, it's a good idea to discuss this with your referees ahead of time or choose referees who will provide a balanced and fair perspective.

Alternatively, if you know there are potential issues, being upfront with prospective employers can mitigate the impact of a bad reference.

Can a reference say you got fired?

A reference can legally say that you were fired, as long as it's true and the wording used is factual and fair.

Does an employer have to disclose a disciplinary in a reference?

An employer is not legally required to disclose a disciplinary in a reference, but they can choose to do so if they believe it's relevant to the role the employee is applying for.

If an employer does choose to mention a disciplinary action, they must make sure the information is presented in a way that fairly reflects the circumstances and outcomes.

Conclusion

While employers aren't legally required to provide a reference, except in certain conditions and sectors, when they do, it must be honest and accurate.

If you ever find yourself uncertain about the fairness or accuracy of a reference or need guidance on how to address issues arising from one, professional advice can be a beneficial first step.

For personalised advice and support on employment matters, our network of expert employment lawyers is ready to help. Contact us for a free case evaluation today.

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