Employee References: Understanding the Law

In the UK, employers are generally not obliged to provide a reference for a former employee. However, if they choose to do so, they must ensure the reference is fair, accurate and not misleading. Employers can face legal consequences if they include false or discriminatory information. This article explains when references should be given, what they should contain and the rights both employers and employees have under UK law.

References remain a key part of the recruitment process, providing potential employers with insight into a candidate’s previous employment and performance. However, many people are unaware of the legal position regarding job references in the UK. Can a previous employer refuse to provide one? What must a reference include and what can be omitted?

The law offers a clear framework to safeguard both employers and employees when references are written or requested. Guidance from ACAS and GOV.UK details the key obligations, exceptions and rights involved. 

Are employers legally obliged to give a reference?

In most cases, employers are not legally obliged to give a reference. They are only obliged to do so if:

• The employment contract, staff handbook or another written agreement specifies that a reference will be provided; or
• The role is within a regulated industry, such as financial services, where specific rules require references for compliance and fitness checks.

For most other roles, providing a reference is voluntary. However, once an employer agrees to give one, they have a legal duty to ensure the contents are true, fair and accurate.

What employers can and cannot put in a reference

Employers can decide how much information to share, from a basic factual reference to a more comprehensive account of performance and conduct.

A factual reference usually confirms employment dates, job title, and, sometimes, the reason for leaving. A detailed reference might include information about skills, abilities or attitude.

However, there are legal restrictions on what can be included:

• Accuracy: Each statement must be correct and backed by evidence.
• Fairness: Opinions should be fair and grounded in documented facts.
• Non-discrimination: References must not include or be influenced by information about protected characteristics such as age, sex, disability, race, religion or     sexual orientation.

• Spent convictions: Employers are not permitted to disclose spent criminal convictions under the Rehabilitation of Offenders Act 1974. However, there are specific    exempt roles (for example, certain safeguarding or regulated positions) where spent convictions can still be requested and disclosed.

• Sensitive information: Absences due to maternity, paternity, sickness, or disability-related adjustments should only be mentioned if objectively relevant to the role and lawfully processed under data protection law.

 References are typically marked as confidential and should only be sent to the designated recipient.

When employers might face legal action

Employers who offer misleading or false references may face various legal consequences:

• Negligent misstatement: If an inaccurate reference results in the employee suffering financial loss, such as losing a job offer, they may claim damages.
• Defamation: if a reference includes false and damaging statements made with malice, the employee may pursue a defamation claim.
• Breach of contract: If a contract or settlement agreement guarantees a reference and one is not given, this could lead to a breach of contract claim.
• Discrimination: References that disclose or depend on discriminatory factors might lead to an employment tribunal claim under the Equality Act 2010.

Employers are therefore encouraged to maintain records that substantiate the contents of any reference they supply. 

Employee rights when it comes to references

Employees have rights under both data protection and employment law.

• Access to information: Under data protection law, individuals have the right to request access to their personal data. This may include copies of references held by the employer receiving the personal information, though not always from the referee.
• Right to challenge: If a reference is inaccurate or unfair, an employee may request it to be reviewed and corrected.
• Legal recourse: If a job offer is withdrawn due to a misleading reference, the individual may be able to pursue legal action depending on the circumstances. 

Best practice for employers when giving references

Although references are not always compulsory, employers should adhere to best practices to prevent disputes.

• Have a clear written policy regarding providing references.
• Keep references concise and factual unless otherwise agreed.
• Train managers and HR personnel on the legal boundaries of what can be communicated.
• Maintain evidence to support any statements regarding performance or conduct.
• Mark references as private and confidential. 

Following these steps helps safeguard both the business and the employee from unnecessary conflict. 

Taking a fair and lawful approach to references

References are a crucial element of recruitment but can also pose legal risks if not handled properly. While there is no overall legal obligation to provide them, any reference given must be accurate, fair, and free from discrimination. Both employers and employees benefit from understanding their rights and obligations in this area.

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The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.‍