31 Jul

Employment references is one of the most frequently asked about aspects of HR and employment. Often, the 'answers' to your questions will come from one of two camps; employers are legally obliged to provide references and employers are not. So which one is true? The blog aims to banish the myths surrounding employee references and give a detailed explanation of when you companies are obliged to give them, and the greatest statement of them all 'it is illegal to give a bad reference' will be answered.

When an employer is recruiting a new member of their team, they will often ask for two references, these are often questionnaires sent to previous employers of the candidate asking details about their employment with them and often some indication of the candidates previous employment. 

Some job offers will be made subject to satisfactory references, meaning if the returned reference is not good enough, the offer of employment could be revoked.

"Am I obliged to provide an employment reference?"

Generally speaking, no. 

For the vast majority of employers, there is no legal obligation to provide an employment reference for a departing (or departed) employee. However, there are time when you would be obliged to provide them, such as: 

  1. You have stated in the contract of employment for the individual that you will supply references on request
  2. Your company is regulated by the Financial Conduct Authority or Prudential Regulation Authority

"How could I manage references for my organization?"

 It is always a good idea to have a written policy to outline your companies approach, this means that both you and your employees will have a reference point for any times that the policy might be needed. 

You can use an internal policy to give clarity on:

  1. What information you will provide on any reference requests
  2. Who (within your organization) reference requests should be sent to
  3. Who (within your organization) is authorized to provide reference

"What can I actually write in a reference?"

This depends on your company's approach to references and the type of reference that has been requested. Generally speaking, there are two types of reference:

Basic Reference

A basic reference will ask (or confirm):

  1. The dates of employment
  2. The role or duties held by the candidate
  3. Possibly the reason for the employment ending

Detailed Reference

A detailed reference will ask (or confirm) the above as well as asking more in-depth questions about the candidate, this could be things such as; their performance levels, their disciplinary history, their conduct or even their salary.

Whether you have received a request to provide a basic or detailed reference you must ensure that the information you provide is accurate and factual. It can be very easy to provide misleading information in a detailed reference and this can often happen if there were bad feelings after the departure of the candidate which may or may not have been their fault.

"Is it illegal to give a bad reference?"

No. It is not a criminal offence to provide a bad reference, however, this does not mean that they don't come with their own risks.

Providing a detailed reference could open your organization to a claim for defamatory comments if it is deemed that the information provided has been intentionally misleading or is not true. 

We recommend that if you did part on bad terms with a former employee and you are asked to provide a reference, that you should provide only basic, factual information. 

You may be asked 'would you employ this person again', in these circumstances, you could simply answer 'no'.

However, it is against the law for information relating to a candidates protected characteristics to be disclosed in a reference, this includes things such as age, disability and sexual orientation.

Need some help?

Tribe HR & Recruitment Services are a revolutionary outsourced agency based in the heart of Yorkshire. We are here to support the core operations of your business, helping it flourish with high quality advice and allowing you the peace of mind that you have qualified experts on hand to support in all aspects of employee management. Contact our team today to see how we could help you. 

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