Most employers request references for prospective employees. This article sets out what employers need to know when requesting and providing references.
This article covers the general position on references. There are special rules governing certain industries and regulated roles which are not covered here. Please take advice as necessary.
Does an employer have to give a reference?
There is generally no obligation on a current or former employer to give a reference, as long as the refusal is for a genuine and lawful reason. For example, it would be unlawful to refuse to provide a reference because an employee has alleged discrimination or brought (or threatened) to bring legal proceedings.
What information should be included in a reference?
There is no set format but the contents of any reference must be true, fair and accurate.
Many employers will simply give basic factual information such as dates of employment, job title and a role description.
Employers should avoid providing sensitive information relating to issues such as:
- health complaints
- absence-related information
- or salary information unless they have the specific, express consent of the employee.
What is a personal reference?
A personal reference is generally given, in a personal capacity, by someone who knows an individual well, such as a former colleague or line manager. Typically personal references focus on the subjective, opinion based information which is not included in a business reference, such as comments about an individual’s character.
A personal reference must still be true, fair and accurate and ought to state clearly that it is not given on behalf of the business.
Must a reference be in writing?
There is no reason why a reference cannot be given verbally, for example, by telephone, but a written reference is a safer option for the businesses giving and receiving a reference in case of any query or complaint about the information provided. It is good practice to follow up on a verbal reference with confirmation in writing.
Can an employer provide a negative reference?
It is possible to include negative information such as the fact that an employee was dismissed or was the subject of a performance management process. Any such information needs to be factually correct and capable of being supported by evidence.
Some employers choose not to provide a reference as an alternative to providing a negative reference on the basis a negative reference is likely to be challenged.
Care needs to be taken in respect of any negative information provided but equally, a reference should not be positive if this would result in painting a misleading picture.
Can an individual see a copy of a reference?
Individuals have a right to access copies of certain information about them by making a “subject access request” under data protection laws. Confidential references are exempt from disclosure in this way. However, this does not mean that an individual will not see a reference as the provider or recipient of the reference might decide to share it with the individual. The reference might also be disclosed in future legal proceedings. The safest approach is to assume that an individual may see a copy of a reference and therefore to only include information which is accurate and appropriate.
Can a business withdraw a job offer on receipt of a negative reference?
Provided the job offer has been made conditional upon receipt of satisfactory references, a job offer can be withdrawn. Sometimes negative references can be the result of an administrative error or an unfair grudge on the part of a former employer so it is sensible to make enquiries to verify any negative information before relying on it to withdraw an offer of employment.
This could include asking the prospective employee for an explanation or contacting the provider of the reference to ask further questions. It could also be appropriate to consider obtaining further references. Another alternative to withdrawing a job offer is to put in place a probationary period or extended probationary period to allow the business to assess the individual’s suitability for the role based on performance and capabilities.
How long should a reference received be kept on file?
There is no specific timescale and employees will need to consider what is appropriate for their business and their arrangements for data retention generally in accordance with their data protection obligations under the GDPR and Data Protection Act 2018. Some employers will destroy a satisfactory reference soon after receipt, simply making a note of the fact that a satisfactory reference was received. Other employers will keep a copy of the reference until the employee has successfully completed a probationary period and is confirmed in post.
Who is liable for the information in a reference?
A business providing a reference is liable for the information in it, as is an individual who provides a personal reference.
If the information in a reference is incorrect or inaccurate and causes an individual or prospective employer to suffer loss then legal action may ensue and financial compensation can be awarded. An individual may also make a complaint to the Information Commissioner, arguing that their data has not been processed in accordance with their data protection rights.