UK: Asking For Employer References – What Can You Ask, And When? GDPR And Other Legal Considerations.

Last Updated: 9 October 2018
Article by Matthew Hodson and Anthony Purvis

During the hiring process, employers will usually request the names and contact details of a candidate's current employer in order to obtain a reference. This allows an employer to learn more about a potential employee's work history and performance to ensure the potential recruit is a good fit. It also ensures that their application was both an honest and an accurate representation of their current role, while checking for some other important basic traits.

There is no standardised reference request. However, we have seen the following questions asked:

  • Confirmation of dates of employment (start and end date) with their employer;
  • Confirmation of their last job role in the company.
  • Salary
  • Job responsibilities
  • If there were issues of misconduct
  • Character reference
  • Absence records for past 12 months
  • Relationship with management and co-workers
  • Would the employer rehire the employee?
  • For non-current roles - why did they leave?

Can I still ask for references after GDPR?

Personal data can only be processed, in this case shared with a prospective employer, if the employer has a lawful basis for processing data.

A lawful basis can be that:

  • the processing is necessary for the employer to comply with their legal obligations;
  • the processing is necessary for the employer to comply with their side of a contract;
  • which the employer has a legitimate interest for processing the data; or
  • consent has been given by the data subject.

However, an employer is under no legal obligation to provide a reference to a future employer (although this may be different when dealing with a regulator) and it is unlikely there is an obligation to provide a reference in an employment contract (although such obligation may exist in a settlement agreement or COT3 agreement). In most occasions, an employer is unlikely to have a legitimate interest to provide a reference (it is for the employee or future employer's benefit). As such, the safest ground for an employer to rely on is consent. The GDPR prevents employers from relying upon implied consent or consent set out in a generic contractual clause. Instead, explicit, freely given and unambiguous consent is required.

One would expect the employee to give consent as the reference may be a condition on their job offer. However, an employer should be very careful to ensure that the consent will cover each piece of personal data shared. For example, an employee will be happy to give consent to their dates of employment but in certain cases, may be more reluctant for an employer to share their absence or disciplinary records. A new employer may wish to obtain consent for each question asked and then share this consent with the current employer to encourage the current employer to share such information.

We expect that employer may put in place a standard references confirming dates and employment and job title. This will simplify the reference process as standard forms obtaining consent can be put in place.

It is equally important to consider not only the legal ramifications of failing to obtain consent, but also the potential issues that would cause for the interviewee. Reaching out to their current employer before they have given consent acts to give the current employer notification that an employee is looking to leave. Most employees would prefer the opportunity to break this news to their employer themselves, especially if they have had a good working relationship. Equally, it is not only the potential employer who assesses the fit during the interview, but also the potential employee, who may have weighed-up their options and decided not to go ahead with the job offer. Should they decide that they would be happier to stay at their current place of work, a reference request would likely damage the relationship with their employer

Note: Current employers, if obtaining consent themselves, should ensure the consent obtained clearly covers all the information that is to be shared. For example, explicit consent to share health records, a special category of personal data, would be required.

What am I allowed to ask?

There is no specific legal guidance on what questions can and cannot be asked. However, employers should to avoid asking (or answering) discriminatory questions. For example, a question asking if an employee has raised complaints of discrimination may lead to a victimisation complaint if a job offer is later withdrawn. Moreover, what questions can be asked about health or disability is restricted under the Equality Act 2010. Specific legal advice should be obtained if you need to ask health questions or wish to undertake health screening on potential recruits.

What if I have concerns with the reference I have received?

If necessary, you should ask for more information from the employer.

Otherwise, you can ask for the employee's side of the story. If your concerns are significant, then you can consider withdrawing any job offer from the employee.

What if the current employer refuses to provide a reference?

There is no obligation to provide a reference. As such, there is little you can do. You can either ask the employee to provide a reference from an older employer, take the risk but review the employee's contractual provisions in relation to the probationary period or consider withdrawing the job offer.

What if I have doubts that the reference is accurate?

If an employer does provide a reference for an employee or former employee, it should be fair, truthful and accurate. If you have relied on a negligent reference and this has caused your business loss, you may have a claim for damages. You should seek legal advice in these circumstances.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions