In today's highly competitive job market, obtaining a good reference from a former employer is increasingly important. However, as a general rule there is no obligation for employers to provide a reference for past employees - one exception to the general rule is that employers who are regulated by the Financial Services Authority have to give a reference for an FSA registered employee.
There are a number of potential legal pitfalls surrounding the provision of a suitable reference. The employer owes a duty of care to former employees when it comes to providing a reference, which means that an employer can be sued in negligence for including false or misleading information in a reference which subsequently causes the employee to suffer a loss.
Conversely, if an employer deliberately or negligently includes information in a reference which causes a potential employer to believe that an employee is substantially better than he or she really is, and the new employer can be shown to have suffered a loss as a result, then the original employer could be liable to pay damages to the new employer.
As an employee, if you discover that an ex-employer has unfairly given you a bad reference, there are, in addition to a negligence claim, other courses of action open to you, including:
- Breach of contract - If you were still employed at the time the employer gave the reference, it could constitute a breach of contract, as, depending on the facts, it might be argued that the reference represents a breach of the implied "trust and confidence" term in a contract of employment.
- Victimisation - If the reason for the bad reference is that you previously brought a claim of discrimination against your employer, then the reference becomes an act of victimisation.
- Detriment in employment - If you were still employed when the reference was given and can prove that the bad reference was a result of a protected disclosure (i.e. whistleblowing) or exercising a statutory right, you may be entitled to compensation from an Employment Tribunal.
If you are facing difficulties over a reference and require sound legal advice either as an employer or an employee, contact Ashby Cohen today. Ashby Cohen focus solely on UK employment law, which means that we're ideally suited to deal with your reference concerns or any other employment law issue you may be facing. We also offer a free initial telephone consultation, making it easy for you to quickly find out where you stand.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.