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It is standard practice to provide details of referees at the bottom of your
CV for prospective employers to contact before offering you a job. But a series
of legal cases challenging what employers can and cannot say regarding a past
employee have made many employers reluctant to provide references. Concerns about
potential liability have reached such an extent that some employers have a policy
not to provide references at all, or, if they do so, only to provide basic facts
about the employment, refusing to comment on the employee's level of performance
and other more subjective issues.
Is a former employer obliged to provide you with a reference?
No. Your former employer or employers are under no legal obligation to provide a reference,
unless there was an express contractual obligation to do so. Furthermore, if one is given,
there is no obligation for it to be full, fair and comprehensive.
If an employer provides a reference what can they say?
Anyone providing a reference has a duty to take reasonable care not to give misleading
information about the employee. This means they should avoid being unfairly selective in
the information they provide, and should avoid including facts or opinions in such a
manner that would create a false or mistaken inference in the mind of the prospective
employer.
Does a previous employer have to reveal any problems that occurred in the past employment?
Where an employee has performed to an unacceptably low level or has been dismissed for
a reason which would cast doubt on his or her suitability to be employed by a new
employer, the employer will be faced with three options:
- To provide no reference at all.
- To provide only a basic, factual reference, giving the dates of employment and the job title only.
- To provide a detailed account, including references to the bad issues as well as the good,
using reasonable care not to give misleading information.
What can I do if my old employer refuses to provide a reference?
The failure by an employer to provide a reference in cases where a discrimination claim might
have been alleged could give rise to a victimisation claim, where the employee could show
that references were commonly or routinely given. Otherwise, it would be difficult for an
employee to complain about a reference not being given.
If you believe your past employer's refusal to provide a reference is victimisation or
the reference provided harmed your future work prospects then the onus is on you to
establish that:
- the information provided in the reference is misleading;
- providing such misleading information is likely to have a material effect on the mind of
a reasonable recipient of the reference to the detriment of the employee;
- the employer was negligent in providing such a reference.
More advice on your rights. | 