Can an employer give a bad reference?

When an employer makes a job offer the offer is very often subject to satisfactory references (although some employers don’t bother!).

Employment references generally include; basic facts about the job applicant (like employment dates and job description), answers to questions such as confirming the reason for leaving, details about skills and abilities, details about character and strengths and weaknesses relating to the suitability for the role they have applied for.

Former employers should make references accurate and fair and must stick the facts rather than subjective opinions. Employers receiving references should handle them consistently and fairly.

Can an employer give a bad reference?

Employers don’t have to provide references. References should not include inaccurate or misleading information. Opinions or comments which cannot be supported by facts should not be included.

Some references may indicate that a job applicant is not suitable for the new role they are applying for, because they don’t have enough experience for the role. If the reason for leaving supplied by the previous employer is different from the reason that the applicant put in their application it could be that the applicant hasn’t accurately explained their current job responsibilities properly.

Employers should not suggest an opinion that the applicant may not be suitable for a job.

What should a new employer do if inaccuracies arise?

It is advisable to discuss any issues raised in a reference from a former employer with the applicant directly. It is important to hear all sides of the story before withdrawing or changing a job offer. One solution is to consider extending the normal probationary period within the employment contract if the new employer has their doubts.

Does an employment reference have to be provided?

A previous employer can usually choose whether they want to provide a reference or not and can also choose how much information they want to give. It is becoming more common for employers may choose to provide a few basic facts about the job applicant.

A candidate’s previous managers and colleagues may also be happy to provide more detailed references. It is advisable for employers to give potential referees guidance on what information they can provide.

Only certain industries such as those regulated by the Financial Services Authority are required by law to give a reference.

Can the applicant see a copy of the reference?

Applicants do have the right to request a copy of the reference, under the new GDPR regulations. This request must be made in writing and should be made to the person who wrote the reference (not the person receiving it).

If a job applicant believes a reference provided for them was inappropriate, they may be able to claim damages in a court, but the burden of proof is on the job applicant.

Acas guidance on employment references

Acas have recently released helpful new guidance on employment references. The guidance covers matters such as; job offers and references, resolving problems with references, what a reference must include, whether or not a reference must be provided, whether an employer can give a bad reference and whether references are needed. See www.acas.uk.org/references.

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