Are bad work references really illegal?
Getting a poor reference from a previous employer can be a nightmare. Unfortunately, it can happen to anyone, even the best workers.
Although it is commonly assumed that an employer must give a reference and writing a “bad” one is illegal, this is not technically the case. In fact, your employer can give you a bad or unfavourable reference if they deem it to be accurate and have reasonable grounds for that belief. However, it is illegal to give an inaccurate reference.
Your boss isn’t actually required to give you a reference at all, unless it is stated in your contract that you are entitled to one. However, more reasonable managers will give you one anyway.
“A work reference has to be fair and not misleading,” says Victoria McLean, founder and chief executive of City CV, the UK career consultancy and outplacement services firm. "In other words, all the information has to be accurate and not subject to personal opinions.
“Given the potential liabilities involved, many employers will only give a short statement confirming your employment dates and job title – what’s known as a factual reference.”
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A full reference gives more detail – but it still has to be accurate and not misleading. This is why many employers stick to factual references as there’s no margin for error, McLean explains.
“It’s a common misunderstanding that employers can’t give a bad reference when in fact it only has to be factual and accurate. For example, if you were disciplined when you worked for your employer, it could form part of your reference.
"In practice, employers are reluctant to give bad references because they may face legal action if it’s not 100% accurate,” she adds.
Essentially, your employer must stick to the facts and there is no room for fabrication or personal slights.
The impact of a bad reference can be far-reaching.
“It is not unheard of for candidates to have job offers rescinded on the basis of a misleading reference,” McLean says.
What is a character reference?
Occasionally, employers might ask for a character reference. This differs from a normal reference in that it’s not about work performance, but rather a brief assessment of you and your character traits.
These might be rare, but there is always a chance they might be requested for jobs that require specific qualities in an employee, such as being trustworthy.
“It’s not the norm for most roles but occasionally employers ask candidates for a character reference," McLean said. "This is a brief assessment of you as a person from someone who knows you well, such as a coach or mentor.
“A character reference could include attitude and soft skills such as emotional intelligence, trustworthiness and communication skills. Obviously, you’d choose someone who will give you a favourable reference – but it should still be measured, qualified and honest.”
What to do if you get a bad reference
Unfortunately, you simply can’t control what former employers say about you and it is possible to get a bad reference.
“If you think your reference was not fair or accurate, you could ask your employer or former employer if they’ll review what they said,” McLean advises. “You can also ask to speak to the hiring manager for your new role to try to address their concerns. Other options include asking if they’ll accept another reference or perhaps offer you a probationary period in your new role.”
If you believe the comments made in the reference are untrue and have unfairly harmed your work prospects, there are legal routes you can take. You may be able to sue for “negligent misstatement,” which will involve showing that the information in the reference is misleading. You will also need to prove that the misleading information has had a negative effect on your future employment and that your employer was negligent in providing a reference.
If you think your reference was discriminatory in any way, you can bring your previous employer to an employment tribunal.
However, legal action is difficult, time consuming and potentially expensive.
“For a start, you’ll need everything in writing," McLean said. "That’s why it’s so important not to burn bridges when you leave a job. Even if you leave under difficult circumstances, it is sometimes possible to negotiate a positive or neutral reference as part of the severance process.
“I’d also advise carefully pre-screening your references. If you have any concerns about what a previous employer might say, line up an alternative. Perhaps start with any LinkedIn connections who have given you recommendations before.”
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