Can My Employer Provide a Bad Reference?

28 June 2017

Employers are under a duty to exercise reasonable care when they provide a reference, which means they must be careful that the reference is not inaccurate, false or misleading.

The reference should not cast the employee in a negative or unfavourable. Employers must also ensure that whilst what they say should be factually correct, it does not give an unfair or misleading impression of the employee overall.

Bad Reference from Employer

If an employee is provided with a bad reference and considers it to be unjustifiable, he/she may have grounds for an Employment Claim on various grounds, including:

  • Breach of the duty of the employer to take reasonable care in the preparation of the reference
  • Defamation, if you can show malice by the employer
  • Constructive dismissal, if you are still employed by your employer

In addition, the new employer may also take action against the old employer and claim for a breach of the duty if the reference is misleading. For example, if a reference focuses entirely on the employee’s positive aspects and omits the negative aspects (because to include them may place the employee in an unfavourable position), a new employer may take action against the old employer on the basis that whilst the reference may be accurate, it was also misleading.

To minimise any risk of action by the employee or a new employer, most employers have a policy to only provide ‘factual’ references for their employees. These are confined to a factual statement limited to the period of employment and the post held. The reference also usually contains a statement that says that it is the employer’s policy to provide a reference in this form.

Some employers have a policy not to provide a reference, and so long as this is a policy that applies to all employees, it would be acceptable. There is no legal duty or obligation to provide a reference. However most employers do provide references of a factual nature. It is also worth remembering that an employer can also refuse to provide a reference in certain situations. If this is the case, the employee should be advised of this before they request a reference.

It is most often the employee who may suffer a loss as a result of a bad reference as it may have a detrimental effect on their ability to secure employment. Should you require legal advice on a reference that your employer has provided, our Employment Solicitors can help you.

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