Our quick guide aims to highlight some of the legal issues and requirements relating to references for those giving references, those who are the subject of references and those requesting a reference. For those writing references, read our article: top tips for reference writers for a checklist of what to include and traps to avoid.
1. Does my ex-employer have to give me a reference if one is requested?
Generally, there is no legal requirement on an employer to give a reference unless they have contractually agreed to do so, for example as part of a settlement agreement. In some sectors such as financial services or education there are specific regulatory rules which require and govern the giving of references.
2. Does the giver of a reference owe any legal duties to the person/organisation receiving the reference?
Yes, where an employer agrees to give a reference they owe a duty both to the subject of the reference and the recipient of the reference. The reference must not be misleading or give a misleading impression; it must be fair, truthful and accurate. Although the reference doesn’t need to be fully comprehensive, it should include what is necessary to avoid it being misleading.
3. How much detail must an employer give in a reference?
Many employers mitigate against the legal risks by giving only basic references which state job title and dates of service but nothing else. An employer is entitled to do this as long as it provides the same type of reference for all employees/ex-employees – otherwise it risks a claim of discrimination and/or victimisation.
4. Am I entitled to see my reference?
A reference will contain personal data and may also contain sensitive personal data. Data subjects are entitled to access their personal information by making a data subject access request. Data controllers can no longer charge a fee for this and must generally, respond within one month of a request.
5. What can I do if I believe an employer has given me a bad reference which I don’t agree with?
If the reference is untrue, unfair on inaccurate, you may have a claim for negligent misstatement. Where the author of the reference has made a disparaging statement and has no defence, such as they honestly believed the statement was true, then there may also be a claim for defamation. Such claims must be taken to the ordinary courts, not the employment tribunal.
If your issue is with the way that reference information has been processed or disclosed then you may be able to make a complaint to the Information Commission or, may have a claim under the Data Protection Act 2018.