References

Topic Index
Overview
Duty of care
Data protection issues
Resources

Overview

Employers do not have to give references for their ex or soon-to-be ex-employees. It is entirely up to the employer whether it does so or not.
But if it does decide to give a reference, it must consider the duty of care that is owed to the person requesting the reference.
While there is generally no duty to provide a reference, there are some exceptions including where:
- the ex-employer has expressly agreed to do so, e.g. in the terms of a compromise agreement
- a refusal to provide a reference could be construed as victimisation as a result of the employee bringing, for example, a discrimination claim
- there is a statutory or other legal obligation to do so, e.g. former employers in the financial services industry must provide prospective employers with all relevant information of which they are aware if a reference is requested (and this requirement will override anything that the ex-employer may have agreed on the employee’s departure about references)
Employers can be liable to both the employee and the prospective employer if inaccurate references are provided.
Confidential employment references constitute personal data under data protection law.
Such references are exempt from disclosure under subject access requests, but an individual is entitled to see a reference received by a new or potential employer, even if it is marked 'confidential'.
A prospective employer should never approach a job candidate's present or previous employer without the candidate's express permission because this would be unfair and a breach of data protection law.

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Duty of care

An employer who provides a reference has a legal duty of care to make sure that it is accurate and not misleading - regardless of whether the employer is legally obliged to provide the reference.
A reference must not give an unfair or misleading impression overall, even if its discrete components are factually correct.
If the reference is inaccurate because the employer has not taken proper care, an ex-employee can bring a claim for negligence in the civil courts for any resulting financial loss.
If the employer believes an employee to be guilty of dishonesty for example and there is an investigation but the employee leaves before the investigation can be completed and it is subsequently discontinued, any unfavourable comments in a resulting reference should be confined to matters which had been investigated before the employee left.
A refusal to provide a reference to an ex-employee who has previously complained of discrimination will amount to unlawful victimisation.
It is not fair or reasonable for a reference to include information about complaints against an employee if these have not been brought to the employee's attention.

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Data protection issues

Providing a reference about a worker from one party, such as a present employer, to another, such as a prospective employer, will generally involve the disclosure of personal data for Data Protection Act purposes.
Job applicants have the right under the Data Protection Act to ask for a copy of any reference provided about them from the person who received it - but not from the person who gave it.
If such a request is made, the receiving employer must consider whether the information supplied is confidential and, where this is unclear, ask the giver of the reference whether they object to it being disclosed and their reasons for objecting.
References should normally be disclosed when requested, unless the giver of the reference provides some compelling reason as to why it should be edited or not released at all.

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Resources

The Policies and Documents section contains an authorisation letter for references, a reference check telephone questionnaire and a references policy (subscribers only).

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