There is a lot of uncertainty for employers and employees concerning employment references, and from the employee’s perspective, a common myth that an employer can’t give a bad reference. Put simply, if you haven’t performed well, your reference might not either.
ACAS has recently published helpful new guidance concerning employment references dealing with the following matters:
• Does a reference have to be provided?
• What can the reference include?
• Can an employer give a bad reference?
• Job offers and references
An employer doesn’t usually have to give an employment reference, but if they do, it must be fair and accurate. Workers may be able to challenge a reference that they think is unfair or misleading. An employer must give a reference if there was a written agreement to do so and where they’re in a regulated industry, like financial services.
If an employer provides a reference, it must be fair and accurate and can include details about the worker’s performance and if they were dismissed. An employer can also give a brief reference, limited to job title and dates of employment and nothing more, if they wish to. This is known as a “factual reference”. Many employers now have a policy only to provide factual references to limit liability for claims.
When opinions are provided in references, they should be based on facts that can be backed up by evidence and references should not include irrelevant personal information. Giving subjective opinions or comments that are not supported by facts should be avoided by employers.
If you are unhappy with a reference, you can request, usually in writing, a copy of any reference sent to a new employer, under the General Data Protection Regulations (GDPR). The request would be made to the author of the reference.
If you think you’ve been given an unfair or misleading reference, you may be able to pursue a claim for damages. You will need to be able to show that the reference is misleading or inaccurate and that you suffered loss as a result. For example, a job offer was withdrawn.
It is good practice for employers to implement a written policy on providing references that is clearly communicated to staff. The policy should set out who within the organisation may provide references and what information the reference should include which is a helpful point of reference to employees wondering what their reference might contain.
If you require advice regarding any references or any other employment matter, call our employment law specialists today on 0845 287 0939 or submit your enquiry online.
