It’s a common practice for new employers to request a written reference or a person’s ability to do the work as well as their character before employing someone. We often hear concerns from ex-employers about what they can and can’t say in a reference so in this blog we debunk some myths and give you some facts about references.

  1. An employer does not have to provide a reference

There is no legal requirement for an employer to provide a reference unless the employee worked for a regulated industry such as financial services

  1. A reference is confidential 

References are confidential between the person providing the reference and the person who receives it. This is to encourage people to give an honest account of how the employee worked. 

This means there is no legal right for an employee or candidate to see the reference but they may be able to request information under a subject access request.

  1. An employer can choose the format or the reference.

Sometimes prospective employers will ask the referee to complete a form. This can be helpful and may help the prospective employer to decide whether or not to hire the candidate. That being said, the referee can decide whether or not they want to fill the form out and which questions they wish to answer.

  1. You can give a ‘Bad Reference’

References should be factual which means that you can give a ‘bad reference’ if it is based on the truth. This may include things such as

  • ‘the employee left pending investigation’
  • ‘The employee was dismissed for gross misconduct
  • ‘The employee had poor punctuality’

An employer should not say things which cannot be proved. Proof could be warning letters, investigation notes or even an attendance record. Sometimes refusing to give a reference is seen as being a bad reference.

It is worth noting that an employer can give their opinion on a person’s suitability for the new role.

  1. A reference should not comment on a person’s protected characteristics.

Protected characteristics are things which a person should not be discriminated against. They include:

  • Age
  • Gender
  • Sexual orientation
  • Marital status
  • Religion or belief
  • Disability
  • Race and ethnicity
  • Pregnancy or Maternity
  • Gender reassignment
  1. What can I do if I receive a negative reference after the person has started working with me?

You can dismiss someone if you receive a negative reference once you have hired the person. Care should be taken and procedures should be followed. Always take advice before dismissing someone for having a poor reference.

Did you know that we provide HR and employment law support for businesses? For more information contact us at info@orchardemploymentlaw.co.uk

Leave a comment