Can an Employer Give a Bad Reference? Is it Illegal?

A good employment reference can be vital to landing a dream role. But what happens if the reference isn’t great. Can an employer legally give a bad reference about a current or former employee?

Many people believe that ex employers are not legally allowed to give a poor reference about work performance. However, references can be negative if they are an accurate reflection of your conduct.

We’ll examine the law around employer references, the potential consequences on both sides when a bad reference is given, and what employees can do to protect themselves from negative responses.

References give any potential employer an insight into the employee’s previous role, performance, and conduct in the workplace. It can be problematic if a reference is bad, or an employer refuses to provide a reference.

But what should be in a reference?

What Information Should be in a Reference?

The amount of information provided in a reference is at the discretion of the employer. However, the information within the reference must be accurate and fair.

A basic reference would simply confirm the candidates job title, and the dates they were employed by the business.

A detailed reference could include any or all of the following:-

  • Basic information such as name and job title.
  • Start and finish dates of employment.
  • Employee skills
  • Strengths and weaknesses.
  • Job description
  • Overall performance
  • Character outline
  • The number of absences.
  • Any disciplinary action if the employee was at fault.

Employers references should be accurate, and avoid providing any irrelevant personal information about the candidate.

References must also not be discriminatory, and should not reveal information on any protected characteristics.

Protected characteristics include:-

  • Race
  • Marital Status
  • Sexuality
  • Sex
  • Age
  • Disability
  • Pregnancy or Maternity
  • Religion

Caution about what should not be in a reference means many employers choose to only provide a basic reference about a candidate.

Is it Illegal to Give a Bad Reference?

Despite a commonly held assumption to the contrary, it’s not illegal to give a bad reference. An employer can provide a negative reference so long as it is truthful and is not discriminatory.

The referee must believe the information they are providing is true and accurate, and they should have reasonable grounds to support their beliefs. Should a reference be innacurate or false, then the employee may have the right to take legal action.

Here are some examples of areas where an employer could choose to comment upon poor performance:-

  • Disciplinary and absence records.
  • General job performance and capability.
  • Timekeeping.
  • The reason the employee left employment.

In most companies, HR would have records to support these points of performance which would offer protection against legal proceedings. The risk of litigation means that many companies now choose to offer factual references only.

Further Reading: Is it illegal to give an employee a bad reference? – HR Toolkit.

What to Do if You’re Worried About Getting a Bad Reference

You’ve left your job not on the best of terms and are worried about receiving a bad reference, what can you do?

If you are worried your reference isn’t going to be a positive one then there are a few points of action you can take to reduce the impact.

Below are some steps you can take to control potential fallout:-

1. Talk to Your Former Employer

If you’re leaving under a cloud, bring up the subject of a reference at your exit meeting or when you hand in your resignation.

You may be able to get some peace of mind from your employer about how they are going to approach your referencing. If you’ve already left, it’s worth sending an email or phoning your former manager to discuss it. You could also approach HR to try and find out what their referencing policy is.

If talking to them is not an option, UK based employment website Indeed suggests you could get a friend or old work colleague to contact them and ask for an employment reference about you. Getting a reference in black and white would give you certainty about what will happen when you apply for jobs.

This may not feel like an easy step, but once the deed is done you will have a better understanding of what will happen when you land your next job. You could save yourself a lot of worry by tackling the situation head on.

2. Have an Honest Conversation With The Potential Employer.

If you feel certain that you’ll get a negative reference, It is worth approaching your new employer and chatting with them openly.

Find a way to put a positive spin on the situation. Your potential manger will be aware that work relationships don’t always work out. The best thing you can do is be honest rather than sticking your head in the sand.

If you feel your former employer may give a misleading or innacurate reference, this should also be discussed in advance. Do remember to remain calm and factual when outlining your concerns. Showing your upset at the unfairness of the situation would be understandable, but might create a poor impression.

3. Gather Alternative References

If you have other referees who would provide a fuller picture of your ability, approach them to ask for a reference.

Spend a bit of time calling or emailing former managers to ask them for help with providing information about the time you spent working for them. Offer these references to your prospective employer in advance, so that they will get a fuller picture of how previous employers felt about your performance.

If You’ve Lost a Job Offer Due to a Bad Reference

What if you’ve lost a job offer due to a bad reference? What should you do next?

How you respond and move on from this distressing event will depend on the circumstances surrounding the bad reference.

There are two possible scenarios for your former employer writing a bad reference:-

1. If You Get a Bad Reference Because of Previous Misconduct

The first possible scenario is that your bad reference was factual and based on previous misconduct, or you may have been dismissed for gross misconductt.

If this is the case then you first need to acknowledge that this reference is fair and based on your experiences there. It doesn’t mean you won’t still be offered the job.

You can approach your employer and give your version of events. Alternatively, you can get ex colleagues to write you a character reference which will give the employer a different perspective.

You can also ask to be given a chance and put on a probationary period for an agreed length of time. This means everyone gets the chance to see how it will work out before fully committing to a permanent contract.

The worst case scenario is that the job isn’t offered to you. At this point, it is a case of moving on and looking for an alternative job.

2. If Your Former Employer Provides a False Bad Reference

When your former employer gives a bad reference that is factually incorrect then you have the right to take further action against them.

This isn’t an easy process and has the potential to be expensive but if you feel strongly, it is something to explore further.

If you can, get a copy of the reference that has been provided to your prospective employer. This will give you evidence of what they have said and how it has disadvantaged you.

Generally speaking, you have two legal paths to pursue if you have lost a job because of a reference.

Employment Tribunal

If you’ve been discriminated against in a reference, you may be able to take an employer to a tribunal.

To be able to make a tribunal claim with regard to employment discrimination within a reference, you must have been treated less favourably based on a protected characteristic.

You have 3 months minus one day to make a tribunal claim. ACAS can offer help with tribunals or offer advice on your situation.

County Court Claim

You also have the option of making a county court claim and if the reference was simply false. This then leads to a job offer being retracted or not offered and you can seek compensation for loss.

Neither option will be easy but you are completely within your rights to take legal action if this applies to your situation. You can get legal advice which will better prepare you for the process of taking legal action.

Citizens Advice can help advise you on legal action. Contact them for support.

Related: Can a job offer be withdrawn after acceptance?

Talk To Your Former Employer

If both the legal options available to you seem overwhelming, or you think you may still be able to persuade your prospective employer to hire you, consider approaching your former employer.

If a manager has provided a reference you consider to be misleading, and the business has an HR department, you should contact them to discuss your concerns. You could also consider approaching the business owner, or another manager.

  • Let your employer know you have lost out on a job because of the contents of a reference.
  • Ask them to review it, and consider if it was accurate and fair.
  • Request they confirm they’ll provide an accurate and fair reference in future, or ask them to reissue a more accurate reference to your prospective employer.

Further Reading

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