Do Employers Have to Give a Job Reference?

does an employer have to give a reference

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There are various do’s and don’ts when it comes to giving a job reference for a former or exiting employee, where it is important for employers to understand their obligations, even after the employment relationship has come to an end. The following practical guide looks at the provision of work references, together with a sample template that could be used.

 

What are job references?

A job reference is usually from a current or previous employer, and can be basic or detailed.

A basic reference is where the employer provides a short summary of the employment, including only the employee’s job title and dates that they worked for their business. In contrast, a detailed reference can include information about the employee’s skills, ability and experience, any relevant disciplinary or time-keeping records, their performance and absence records, as well as the reasons for that person leaving the organisation.
aThe employer could also be asked to provide a character reference, where they are required to comment on the strengths and weaknesses of a former or exiting employee, as well as their suitability as a candidate for a potential new role with another employer.

 

Does an employer have to give a reference?

By law, an employer does not have to give a reference unless it is:

  • in writing that the employer will provide one, for example, where provision has been made within a person’s contract of employment for a reference when they leave
  • agreed in some other circumstances, such as part of a settlement agreement, where the employee has agreed to go quietly, waiving their right to claim unfair dismissal in return for some form of remuneration or other incentive, including a job reference
  • for certain job roles, such as some financial services jobs regulated by either the Financial Conduct Authority or the Prudential Regulation Authority.

 
However, save for the exceptions set out above, there is generally no legal obligation on employers to provide a reference, where an employer will be entitled to refuse to give one. It is also worth noting that employers are under no obligation to make express provision within their contracts of employment for references. Additionally, if provision is made, any workplace policy relating to references can restrict how much they include in a reference and who is authorised within the company to give a reference on the employer’s behalf.

Still, most reputable employers will agree to give references as a way of supporting their staff, in recognition of their service, both during and after the employment lifecycle has come to an end. A reference is also a way of supporting the wider working community, as most employers will request a reference from a previous employer and most employees would therefore find it extremely difficult to secure alternative employment without one.

 

What are the rules when giving a reference?

In circumstances where an employer is either obliged or agrees to give a former or exiting employee a reference, the contents of that reference must be true, fair and accurate.

When providing a job reference, the employer-referee will be under a duty to both the employee and prospective new employer to take reasonable care to ensure that the information given is neither false nor misleading. This essentially means that the reference must not be deliberately disparaging, either in an attempt to sabotage the employee’s chances of securing alternative employment or for any other reason. The reference must also not give an impression which is either unfairly negative or misleadingly positive.

If a reference is unfairly negative, the employee may seek to claim compensation in cases where this has cost them a valuable job opportunity. Equally, for the new employer who has wasted recruitment costs in reliance on a positive but misleading reference, they too make seek to recover their losses from the employer who provided that inaccurate information. These types of claims are rare but, as a matter of best practice, it is always best to avoid any statements that are likely to expose the employer-referee to a risk of litigation. Even if the employer is able to defend any claim, this process can be costly and time-consuming.

It is also important to ensure that any statements made are not in any way discriminatory, for example, where a negative statement is made relating to one of the protected characteristics as set out under the Equality Act 2010, such as age, sex, disability or race.

 

What should a work reference include?

When a work reference is given, provided it is fair and accurate, it can be as basic or detailed as the employer-referee decides, although any workplace policy relating to references may contractually prescribe the nature and extent of any detail to be included.

The basic reference can be limited to the employee’s job title and dates of employment, while a more detailed reference can include various facts about all aspects of employment. The most important point to bear in mind when writing a reference, regardless of how little or how much detail is given, is that the contents are true, fair and accurate.

It is also worth bearing in mind that a reference need not necessarily be full and comprehensive, where the employer-referee can still discharge their duty to be fair to the employee, without being unfair or misleading to the recipient of the reference. In this way, where an employee has been dismissed, or the circumstances in which they left were otherwise negative, the contents of the reference can be entirely factual and neutral.

 

How to write a work reference

In cases where a request for a reference has come directly from a prospective employer, they may ask for the reference to be in a certain format, such as by letter or email. They may also provide a pre-set format, including a response to certain questions or requiring certain content to be included. The employer-referee is not obliged to complete any questionnaire, nor to include all recommended content, where they are free to adopt their own approach, although a reference not in the requested format may not be accepted.

If, on the other hand, the reference request comes directly from the employee, the employer may want to ask what format they would prefer the reference to be in, as well as where to send this and by what date. Otherwise, there is no prescribed format for how a reference should be set out, although this should be written on company headed paper or be sent from an official company email, including a clear and concise subject line citing the employee’s name, the job role they are applying for and the purpose of the email.

There is also certain basic information that the reference should contain, including:

  • the name of the employer and the date of the reference
  • the name and position of the person writing the reference
  • the employee’s job title
  • the start and end dates of their employment.

 
For a more detailed and favourable reference, this could additionally include:

  • how the former or exiting employee is known to the writer
  • the employee’s former or current role and responsibilities
  • the employee’s skills, ability and experience
  • the employee’s attributes and accomplishments
  • the employee’s strengths and capabilities as a candidate
  • the employee’s suitability for the new role applied for
  • a clear recommendation for the job role sought.

 

Who should write the job reference?

In addition to the content to be included, any workplace policy relating to references can also prescribe who is authorised within a company to provide a reference on the employer’s behalf. This may be someone from HR, not least where references are to be basic and factual, where the writer does not need to have known the employee on a one-to-one basis.

However, if the employer is looking to provide a more detailed or character reference, this should be written be someone who knew the former or exiting employee and had worked with them directly. In this way, that person will be able to fairly and accurately comment on the employee’s character and credentials. The referee should also be somebody suitably senior within the business, such as a line manager, providing the necessary authority to comment on the employee’s strengths as a candidate and suitability for another role.

 

Example job reference

Below is set out a template job reference which can be shortened or expanded as appropriate, or otherwise tailored to the circumstances involved. This template provides three different options [A, B or C] for either a basic, detailed and/or character reference.

[The Employer-Referee’s Name & Address] [The Date of the Reference]

RE: [the Employee’s Full Name] Dear [Recipient’s Name] [Sir/Madam] [To Whom It May Concern],

In respect of the person named above, I can confirm the following:
[Option A: basic work reference] Their position held
The dates of their employment

[Option B: detailed work reference]

All matters covered in option A
The employee’s role and responsibilities
The employee’s salary
Their performance record
Their sickness and absence record
Their disciplinary or time-keeping record

[Option C: character reference]

All or some of the matters covered in option A & B
How the employee is known to the writer
How long the writer has worked with them
Comments on the employee’s skills, ability and experience
Comments on the employee’s attributes and accomplishments
Comments on the employee’s strengths and suitability for the new role
A positive endorsement for the job role sought.

Yours sincerely/faithfully,

[The Writer’s Name and Position Within the Company].

 

Can you give someone a bad work reference?

It is not unlawful, of itself, to provide a former or exiting employee with an unfavourable reference, including things like any poor time-keeping record or a history of excessive absences, provided this is true, fair and accurate. However, there are certain things to bear in mind when writing a reference which are likely to be construed negatively.

If the employer-referee includes the employee’s sickness or absence record, this must not include absences related to either any disability or to parental rights, such as maternity leave. By including these absences, and doing so in a way that could impact their ability to secure alternative employment, this is likely to be construed as discriminatory.

It is also worth remembering that even though it is strictly permissible to include accurate but negative factual statements, including any relevant disciplinary records or the reason for someone being dismissed, if the overall impression given it still unfairly misleading, this could expose the employer-referee to claims of unfairness by the employee.

It can often be best to provide a basic reference only, or even to decline to give a reference, if contractually possible, rather than provide an employee with a bad reference. This can minimise the risk of legal proceedings, while not misleading the recipient of the reference. It is also not uncommon these days for short and basic references to be given by former employers, where the new employer is unlikely to draw any adverse inference from this.

 

Do’s and don’ts of giving a job reference

The do’s:

  • Do check the employee’s contract of employment to see if contractual provision has been made as to the provision of a reference
  • Do check any workplace policy relating to references to check what provision has been made as to the contents of any reference given and who is authorised to provide one
  • Do check with the employee where the writer is unsure what format the reference should be in and where to send this
  • Do use positive expressions, where appropriate, but keep these comments professional
  • Do be concise and to the point, even when providing a favourable reference, focusing on the key matters potentially relevant to the employee’s new role
  • Do consider politely declining the provision of a reference where to do otherwise would expose the employer to allegations of unfairness.

 

The don’ts

  • Don’t include any statement that is untrue, unfair or inaccurate
  • Don’t include any comment that gives a misleading impression
  • Don’t include any statement that is discriminatory in any way
  • Don’t include absences related to either any disability or parental leave
  • Don’t provide unfavourable detail unless this is the only way to be fair to the recipient
  • Don’t include details about any poor performance, or any disciplinary or dismissal, unless this can be backed up by clear and cogent documentary evidence in support
  • Don’t make disparaging remarks about the employee, either in a personal or professional context, where any unfavourable reference should be kept purely factual.

 
On one final note, employers should consider their data protection obligations when sending references, ideally obtaining the employee’s consent, as this will contain personal information. The reference should also be marked private and confidential.

 

Need assistance?

For expert advice on an employment law issue, such as your obligations towards an exiting or former employee, contact us.

 

Job reference FAQ’s

Can an employer refuse to give a reference?

Unless there is an agreement in place, or an exiting employee works within a regulated industry, an employer can refuse to provide that individual with a reference. There is also no duty to provide only a favourable referenc

Can you work without a reference?

You will often need a reference from your former employer to be accepted for a new position, although your new employer may be prepared to employ you on a trial basis if you are unable to provide a job reference.

Can you lose a job offer because of a bad reference?

If your former employer provides a bad reference, this could easily result in the loss of any job offer. This is because prospective employers will be looking for a positive recommendation about any new recruit.

 
Last updated: 28 October 2023

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