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.
