My Employer Has Refused To Give A Reference, What Can I Do?
We would recently instructed on a case where an ex-employee had put forward their former employers details for a reference without getting the former employers agreement. The employer did not wish to provide a reference for the ex-employee. In this blog we look at the legal position on references.
Employers are not obliged nor are they subject to any statutory obligation to provide a reference for an employee, however, it is accepted good practice that most employers would provide such a reference.
There is of course as with most areas of law an exception to the rule. If an employer is regulated by the Financial Conduct Authority (FCA) then they are legally obliged to respond to a reference request and provide such a reference within a reasonable period of time. The reference must include all relevant information that the employer holds on the employee.
Even if the Employer is not regulated by the FCA, quite often Contracts of Employment contain clauses which dictate what the respective parties obligations are in relation to references. Other times it may have been agreed in writing between the employee and employer at the point of cessation of employment to provide a reference, in such a case the employer is bound to provide a reference and failure to do so could result in a claim by the ex-employee.
In some circumstances, there may be an implied duty on the employer to provide a reference based upon past custom best practice.
It would be unlawful victimisation to refuse a reference because, for example, someone has brought discrimination proceedings.
If the employer does provide a reference, the employer needs to ensure to take reasonable steps to ensure the reference is fair. In the event that a reference was deemed to be discriminatory then the ex-employee may be able to bring a claim against his ex-employer and potentially his new employer.
An employee could make an application under the Data Protection Act for a copy of all the information held by the employer regarding the employee and hence use this tool as a way to review any references released by the former employer.
If in doubt an employer should seek legal advice when providing a reference. Only information which is non discriminatory and factual should be included. If an employee has a disability which resulted in a lot of time away from work then this should not be included in the reference to avoid any claim against the employer.
The former employer has a duty of care to the potential new employer to give truthful and accurate information. Any such breach could result in a double claim from both the ex-employee and the prospective employer if it is argued that the reference is negligent and the new employer as a result suffers financial loss.
There are no set templates or precedents to use for a reference. An employer can provide as much or as little information as they desire. Many employers have a policy of only providing a reference with very basic information e.g. dates of employment and job title.
If in doubt seek advice from a specialist before sending the reference.