Does My Employer Have To Give Me A Reference?

Written by Leah Waller
Senior Employment Consultant Solicitor

I often get asked by clients whether their former employer has to give them a reference, usually followed up by…can they give a bad reference?

So, I thought I would address a few issues here:

 

Does my Employer have to give me a reference?

In short, NO, your employer does not have to (unless the business is regulated by the Financial Services Authority (FSA)).

 

An employer can refuse to give a reference BUT should consider whether this is a wise decision. If it is a company-wide policy not to provide references and this is never deviated from, then it may be acceptable. However, providing responses for some and not others could land you in hot water in relation to discrimination or other claims.

 

Can my employer give me a ‘bad’ reference?

When providing a reference, your employer (or the writer), has a duty to both you (as the subject) and to the future/prospective employer (that has requested the reference).

 

The information given in a reference must:

• Be true
• Be fair
• Be accurate
• NOT include any Defamation or Defamatory comments

 

This means that a reference cannot be written in a malicious manner.However, if there is evidence to support undesirable behaviour (for example, lateness, high absence record, or disciplinary action) then this could be included (or a statement to that effect).

 

Is it usual to receive a reference with minimal information?

In light of the issues I have highlighted above, and the fact that a future/prospective employer could bring a claim against the author of a reference should the information be incorrect and lead to losses by the new employer…it is common practice for many employers to give a standard response simply stating:

• the date your employment started
• the date your employment ended
• your job title
• the reason for leaving (mutual agreement, resignation, redundancy, dismissal etc.)

 

Am I entitled to a copy of the reference my employer provided?

Your employer, or former employer, does not have to provide you with a copy.

However, if you make a Data Subject Access Request then your employer would be legally obliged to provide this within the information that is provided to you.

 

How can I guarantee a reference?

One way to guarantee that your employer (or former employer as the case may be) will give you one, and that you know exactly what it will state, is to have this included in a Settlement Agreement.

 

A Settlement Agreement can be entered to bring an employment relationship to an end and is usually on the basis that the employer pays the employee a sum of money (although not always the case) and agrees to provide a reference that is often scheduled to the Agreement. The employer must not deviate from the details agreed in the Agreement, unless new facts come to light following agreeing the reference that would make it incorrect or inaccurate.

 

What if my employer gives me a bad reference?

If your employer gives you an inaccurate reference, then you may be able to bring a claim against them for damages. The damages you could claim would be based on your loss of earnings, should you have a job offer withdrawn or can prove that you were not offered a particular job because of the information that they provided.

 

*A NOTE FOR EMPLOYERS: It is strongly advisable to have a policy (that is Company-wide!) in relation to references and what will be given upon request.

 

We act for BOTH Employers and Employees and so, if there is anything you require assistance with, our Employment Department at Greystone Solicitors offer a FREE initial consultation and are more than happy to help.

 

Call us on 01582 343453 or email on Info@GreystoneSolicitors.co.uk