Employer giving a bad reference

This is a common concern, and the legal position in England and Wales is more nuanced than many people realise.

The general position:

There is no general legal obligation on an employer to provide a reference at all, unless the contract of employment or a settlement agreement requires one. Many employers choose to give only a basic factual reference confirming job title, dates of employment, and sometimes salary, precisely to avoid disputes.

However, if an employer does choose to give a reference, there are important legal constraints.

The reference must be true, accurate, and fair:

The leading case is Spring v Guardian Assurance (1995), in which the House of Lords held that an employer owes a duty of care when providing a reference. This means a reference must not be misleading, whether by including inaccurate negative statements or by omitting relevant context that would give a fair and balanced picture. A reference does not have to be full or glowing, but it must not create a false or misleading impression overall.

So an employer can include negative but truthful information, provided it is presented fairly and is not taken out of context.

What you can do if you receive a bad reference:

1. You can make a subject access request under UK GDPR to the new employer who received the reference, asking for a copy of it. The new employer is the data controller of the reference once received and is generally required to disclose it, although they may in limited circumstances redact the identity of the referee. The old employer who wrote the reference is not obliged to disclose it to you under a subject access request made to them directly, as there is a specific exemption for references given in confidence by the author.

2. If the reference is inaccurate or misleading, you may have a claim in negligence against the former employer based on the duty of care established in Spring v Guardian Assurance.

3. If you believe the bad reference was given because of a protected characteristic such as race, sex, disability, religion, sexual orientation, age, gender reassignment, marriage or civil partnership, or pregnancy and maternity, or because you did something protected by law such as whistleblowing or bringing a tribunal claim, this could amount to unlawful discrimination or victimisation under the Equality Act 2010 or detriment under the Employment Rights Act 1996.

4. If a settlement agreement includes an agreed reference, and the employer departs from the agreed wording, this is a breach of contract and you can take action on that basis.

Practical considerations:

If you suspect a former employer is giving damaging references, the most effective first step is to obtain a copy of the reference through the new employer via a subject access request so you know exactly what has been said.

If the reference turns out to be inaccurate or unfair, a well-drafted letter to the former employer setting out the inaccuracies and requesting correction, together with a reminder of their legal duties, will often resolve the matter without the need for proceedings.

If informal steps do not work, you would need to consider whether you have suffered a quantifiable loss, for example a lost job offer, as this will be relevant to any negligence claim. A negligence claim would be brought in the civil courts rather than the employment tribunal, unless the claim also involves discrimination or victimisation, in which case the tribunal may have jurisdiction over that element.

One practical tip worth noting is that if you are negotiating a settlement agreement or exit from employment, it is often wise to agree the wording of a reference as part of the deal, along with a clause that the employer will not depart from that wording.