Employer Myths: Are You Allowed To Give A Bad Reference?

In September 2018, ACAS released new guidance on how to provide an employment reference. A job reference is often requested by prospective employers to ascertain whether the job applicant is suitable for the position applied for.

A word of caution has been given from Tom Neil, an ACAS Senior Adviser on providing a job reference;

"The job market can be very competitive, so it is vitally important for job applicants and employers to know what the legal requirements are around work references.”

The above being said, are you required to provide an employment reference? The answer: No. You can usually choose (only certain industries which are regulated by the Financial Services Authority are required to give a reference by law) on whether you want to provide one or not and how much information you want to provide.

What can an employment reference include?

ACAS have made the following recommendations:-

  • basic facts about the job applicant, like employment dates and job descriptions
  • answers to questions that the potential employer has specifically asked about the job applicant that are not usually given as basic facts, like absence levels and confirming the reason for leaving
  • details about the job applicant's skills and abilities
  • details about the job applicant's character, strengths and weaknesses relating to the suitability for the role they have applied for

Can you provide a bad reference?

A reference must be a true, accurate and fair reflection of the job applicant. When opinions are provided, they should only be based on facts and references should not include irrelevant personal information.

It is important for employers to bear the above statement in mind when preparing an employee reference and ensure the reference is true. In the event the job applicant is unhappy with a reference, they can request, in accordance with GDPR for a copy of any reference sent to a new employer.

If a job applicant believes a reference provided for them was inappropriate they may be able to claim damages in a court.  To this end, the job applicant would have to be able to show that the information was misleading or inaccurate and that they have suffered a loss, i.e. such as a withdrawal of a job offer.

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