References and the Law

Apply for a DBS Check

There are a lot of myths around references, and what your former employers are and are not allowed to say about you. Getting a reference is just as much part and parcel of the recruitment process as getting a DBS check or filling in the application form, so it’s important that both employees and employers understand their rights and obligations.


Employers Aren’t Allowed to Give Bad References

This is perhaps the biggest myth you’ll hear about references and it’s completely wrong. Employers must by law be able to back up things they write in a reference. This has been misunderstood to mean that they can only say positive things and must stay quiet about the negative things. However, if an employer can demonstrate that you were sacked for stealing, or that you had a persistent pattern of lateness, then they are allowed to say that. Employers will avoid making statements which can’t be backed up by evidence, whether negative or positive. This means that you are unlikely to find anything opinion based on a reference, describing someone as unreliable, unfriendly, or nor popular with colleagues – because it’s hard to back those opinions up if the applicant takes offence and decides to sue.


Leaving Under a Cloud

If you’ve been sacked from your last job, then bear in mind that this may be disclosed in a reference from your previous employer. They are also allowed to say that a disciplinary investigation was underway when you resigned. If you have left your previous job in this way then it’s important to be up front about what went wrong, and why you believe those circumstances won’t cause a problem in the future. If your conduct at a previous job resulted in criminal proceedings against you, then remember that even if your previous employer chooses not to disclose the matter, it may be revealed on a DBS certificate if your job requires one.


Giving References – What Should I Do?

If you’re on the other end of the equation and are being asked to give a reference to a previous employee, what should you do? If you work for a large organisation, speak to your HR department which may handle all referencing centrally. Many employers choose to give a basic reference only. This means simply confirming the name of the person, the date they started, job title, and date of leaving. This sort of reference makes no comment at all on the conduct of the employee and ensures that there is no issue with a reference being bad or good.

Sometimes, prospective employers will get on the phone and call for a reference instead, knowing that we’re all more likely to say things in conversation which we wouldn’t necessarily commit to email or letter. If your comments are positive then this poses no problem, just tell the new employer that you’d recommend the person they are thinking of hiring. If you wouldn’t recommend, then tread carefully; there may still be potential legal consequences in the future.