Can employers give ‘bad’ references?

Acas have recently issued fresh advice to help employers and employees understand the rules about references.  One of the questions they have given guidance on is whether an employer can give a ‘bad’ reference for a former employee or worker.

The short answer is yes, an employer can give a ‘bad’ reference which may indicate to the new employer that the person is not suitable for the role they have applied for.

How can a reference be ‘bad’?

There are many ways in which a former employee or worker may consider a reference to be ‘bad’. For example:

• the reference may suggest that they do not have sufficient experience for the role they have applied for;
• the reference may suggest that the former employee or worker did not accurately describe their former role; or
• there could be conflicting reasons given as to why the employee or worker left their former role.

Risk of claims

If the job applicant believes that the reference was inappropriate, they may be successful in pursuing a claim against their former employer for compensation if they can show that the reference was misleading or inaccurate, and that they have suffered a loss (such as the withdrawal of a job offer).

Advice for employers

It is worth noting that unless the employer is part of an industry where references are required (such as financial services), employers are not obliged to give references. However, it is common practice to do so and it is generally within the discretion of the employer as to how much information they wish to provide.

Given the risk of claims, the majority of employers elect to give only a factual reference which simply states the employee’s role and start and end dates of employment.  Employers who wish to provide a more detailed reference should ensure that:

• references are accurate and fair;
• they do not include any misleading or inaccurate information;
• any subjective opinions or comments given are based on facts that can be evidenced; and
• they avoid including irrelevant personal information.

Acas advises that employers should have a policy in place to help them handle reference requests, setting out what information they can provide.