Can a former employer give a bad reference?

Employer references: Are former employers allowed to give a bad reference?

Looking for a new job can be daunting, no matter the reason behind the change. From job seeking to interviewing with a new employer, it is easy for the process to seem overwhelming or nerve-wracking. The last thing anyone wants to be worried about is receiving a bad reference from their current or previous employer.

An employer is duty-bound to be fair, accurate and honest when giving a reference; it must be realistic and representative of the individual in question. An employer should not exaggerate or present the individual in an unjustified way for any reason, whether that’s overly positive or overly negative.

Do previous employers have to provide a reference?

Generally speaking, no, an employer is under no obligation to provide a reference for a previous employee – though there are exceptions to this rule.

For instance, an employer should provide a reference if a refusal to do so amounts to discrimination, or if they are contractually obligated to do so (sometimes used in settlement agreements).

There are also some sectors that have their own regulations and rules that dictate how references are written and when they are provided, such as financial services and education.

Can a former employer give a bad reference?

This is a complex question, as it depends on what is meant by ‘bad’ reference.

Ultimately, the key to defining whether a reference is ‘bad’ is how truthful the content is.

An employer cannot provide a negative reference without any justification, and they cannot speculate or include conjecture. This means that it is unlawful for an employer to act in a vindicative or untruthful way when providing references.

However, they can include statements that could be perceived as negative – for example, statements on the individual or their abilities – if they can be shown to be truthful and justified in the context of the role for which they are applying.

What rules do employers have to follow when giving a reference?

When providing a reference for a previous employee, an employee must:

• be fair: in the circumstances of the role for which the employee is applying
• be truthful: a reference should not include anything obviously wrong or misleading, including statements taken out of context
• be accurate: this means including all the relevant contextual information when providing statements on a person’s competence and abilities to perform in their new role

What can I do if I've received a 'bad’ reference?

If you are concerned that you have received a ‘bad’ reference from your previous employer, you should in the first instance speak to your new employer to understand their concerns and if there is anything you can do to address them.

You should also contact your previous employer to understand what the issue was and request a correction or a more balanced reference.

If you are unable to reach an agreement, and believe that the reference provided was unfair, inaccurate, or discriminatory, you could be eligible to bring a claim against your previous employer in an employment tribunal.

To be successful at an employment tribunal, you will need to be able to prove that the reference was unjustified or discriminatory, and that it caused you financial loss. For instance, it could be that the negative reference resulted in a job offer being rescinded, which left you out of work or in a lower paid position.

In general, you have three months minus a day from the date of the discrimination or unjust action to bring a claim.

Award-winning employment law advice

If you believe you have been unjustly treated by a previous employer when giving a reference, it can be difficult to know how best to respond and how to prove the impact it has had on your circumstances.

Our employment solicitors are here to help. As industry-leaders in employment law, we understand the complexities involved in employment tribunal cases against previous employers, and the need for empathy and understanding in what can be a very stressful time. That is why our solicitors are on hand to support you from day one, providing tailored expertise and leading legal services to secure the outcome you need.

To speak to our team about an unjust reference and what we can do to help you set things right, call us today on 0330 041 5869 or get in touch online.