Negotiating Your Agreed Employment Reference

No, most employers are not required to give a reference. The main exceptions are where:

• there is an express obligation on the employer to provide one included in your contract of employment or in your settlement agreement.
• where the rules of your professional body require your employer to give a reference. For example if you will be carrying out certain functions within the financial services industry that requires approval by the Financial Conduct Authority.
• a failure by your employer to provide the reference amounts to discrimination or victimisation.

A reference can be given verbally or in writing. It is normally best to require your employer to give an agreed written reference and then to make sure that your employer, when answering any telephone or verbal follow up request, responds in a manner consistent with the terms of the agreed written reference.

Your employer does not have to give a detailed reference to prospective employers. It is increasingly common for employers to provide only short factual references giving minimal details about your job title, start and finish dates.

Employers who adopt this approach as standard will often include a statement on the reference to confirm that it is the company’s policy to give those details. If your employer is only willing to provide limited details in a reference, you may want to request that such a statement is also included to avoid the limited information being considered negative.

In many cases to help secure terms of settlement employers will agree to provide a more detailed reference.

If your employer agrees to provide a more detailed reference you may want them to include information about your:

• key duties and responsibilities
• job performance
• absence record
• disciplinary record
• punctuality
• honesty and integrity
• the agreed reason(s) for your leaving.

Your employer owes you a duty to take reasonable care to ensure that any employment reference they provide about you is true, accurate and fair. In other words it must not be misleading or unreasonable. This means the reference must be based on facts, although your employer is allowed to offer its subjective opinions about you provided they can be justified.

If your employer gives a misleading reference, you may have one or more claims including:

• negligence to recover damages if you suffer financial loss as a result of a misleading reference prepared without reasonable care e.g. you were not offered the job with the prospective employer as a result of what was said in the reference.
• constructive wrongful and unfair dismissal. You may be able to resign from your existing employment as a result of a misleading reference given by your existing employer.
• defamation to recover compensation for damage caused to your reputation.
• malicious falsehood if you can show that the statements in the reference were made maliciously and were untrue.

You should obtain legal advice if you believe your employer has provided a misleading reference about you. If so, acting quickly is important to protect your legal position. The employment law solicitors at Quantrills can help you.

Your employer owes a duty to the recipient of the employment reference (your prospective employer) and must take reasonable care to ensure that the reference is true, accurate and fair. If your employer breaches this duty and the prospective employer relies on the reference the prospective employer could bring claims for:

• negligent misstatement; or
• deceit.

In both cases the prospective employer may be able to recover damages if they suffer financial loss as a result of relying on the misleading reference. This is why an increasing number of employers have a policy to provide short factual references covering only your start and end date and job title etc.

Yes, it is quite usual for the employee to be asked by the employer to provide the draft reference, especially where the employer is happy to give a more detailed reference. Sometimes it can take a number of revisions before both parties are able to agree on the final version!

Possibly, but your employer has to make sure that any reference it gives about you is not misleading. Therefore, for the information in the reference to be true, accurate and fair your employer may be reluctant to leave out information about, for example, a live disciplinary warning, or that disciplinary proceedings were ongoing when your employment came to an end, or that you had a poor attendance record. However, there are some details about you that your employer should not include and which you can ask that they leave out:

• Details about your sickness absence Information about your health may be ‘sensitive data’ under the Data Protection Act 1998. If so, it can only be disclosed by your employer in limited circumstances.
• Details of your alleged misconduct Your employer should be wary about including details of any allegations of misconduct that have been made against you unless they have been properly investigated.

Given the relative degree of freedom your employer has to decide what information to include in a reference, this is why it is often sensible to try and agree the contents of the reference with them.

Your employer may wish to add a disclaimer at the end of a reference to try and avoid liability for any loss that you or the prospective employer suffers as a result of any errors or omissions in the reference.

These types of disclaimer, if worded correctly, may prevent the employer becoming liable for a claim of negligent misstatement or deceit from the prospective employer. However, the disclaimer is unlikely to be effective against a claim by you. Any disclaimer will only be effective so far as it is reasonable under the Unfair Contract Terms Act 1977. This should provide you with some comfort if your employer insists on including a disclaimer.