In today’s business landscape, job offers are often contingent on a prospective employer receiving a ‘good’ reference. This highlights the crucial importance of obtaining a favourable one, as it is likely to have a direct impact on an individual’s employability in the future and maintaining career prospects.

When approached for a reference in relation to either a current or former employee, occasionally, employers find themselves in a difficult situation as they may be tasked with writing a reference that does not present the former/current employee in a positive light, potentially hindering their ability to secure a new job.

There is a common misconception regarding the legality of employers issuing negative references. Despite widespread belief, it is not illegal per se to provide unfavourable references. However, specific legal principles and obligations regulate this process, aiming to uphold fairness and accuracy in the exchange of information between organisations.

References must not be misleading, and organisations have the right to provide references they believe accurately describes the individual and their work. Provided there is supporting evidence, an employer may provide details of underperformance, issues of lateness, or misconduct for example. Up to date, accurate record keeping is therefore vital in the event an employer wishes to justify an employment reference. Documents such as annual appraisals and probationary reviews, would assist an organisation defend any contentions that a reference has been carelessly written.

The case of Bartholomew v London Borough of Hackney which was heard in the England & Wales Court of Appeal, held that despite factual accuracy, the Court of Appeal emphasised that a reference should not convey an unjust or misleading impression overall. However, it concluded in this instance that the Council had not breached its duty of care owed to their former employee, finding that the Council’s duty was to provide a comprehensive reference, which it did in this case.

One option for organisations is to provide factual references only. Providing a factual reference not only reduces the likelihood of disputes over accuracy or fairness but also helps mitigate the risk of potential legal challenges. This approach may also safeguard the employer’s reputation and minimise allegations of negligent misstatement, discrimination, or victimisation. A policy on where an organisation stands in relation to the employment references would be advisable.

If you find yourself with any doubts or apprehensions regarding either providing a reference or receiving one, it is crucial that you seek legal advice. Please contact our Employment Law experts here at Edwards on 02890 321863 or, should you require advice on this topic.