In most cases, you do not have to give one at all
There is generally no legal obligation to provide a reference. Certain regulated sectors, financial services in particular, are the exception, and a contract or a settlement agreement can create a duty where none otherwise exists.
Outside those, you can decline. Plenty of employers have a policy of giving only factual references, confirming job title and dates, and that is a perfectly legitimate position.
What you cannot do is refuse for a discriminatory reason, or because someone raised a grievance or brought a claim. That is victimisation, and it is a fresh claim in its own right.
Decide your policy now, before you are asked about someone you did not like. Applying the same rule to everyone is most of the protection.
If you do give one, it has to be accurate and fair
The duty is to take reasonable care. A reference must be true, accurate and not misleading, and it should not give an unfair overall impression.
That last point catches people. A reference can be entirely factual and still misleading if it leaves out something important or emphasises one incident out of proportion.
You owe that duty to the employee and, in practice, to the new employer relying on it. So a glowing reference for someone you dismissed for dishonesty carries its own risk.
The things not to put in one
Health information and absence records. Disclosing these can lead straight to a disability discrimination claim against you, and the new employer generally should not be asking at that stage anyway.
Anything about a grievance they raised or a claim they brought.
Speculation, opinion dressed as fact, or anything you could not evidence if asked.
And a disciplinary matter that was never concluded. An allegation that was still being investigated when they left is not a finding, and should not be presented as one.
Before sending it, ask whether you could show every sentence to the person it is about. If not, take it out.
The awkward one: they were dismissed
This is where owners tie themselves in knots, usually between wanting to be fair to the person and not wanting to mislead the next employer.
The safest route is a factual reference. Job title, dates of employment, and nothing more. It is honest, it is consistent, and it does not require you to characterise anything.
If a reference has been agreed as part of a settlement, the agreed wording is what you send. Not a version of it, and not with a phone call afterwards saying what you really thought. That undoes the agreement and can be a breach of it.
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Frequently asked questions
Can I just refuse to give a reference?
Usually yes, unless you are in a regulated sector or a contract or settlement agreement requires one. Just apply the same approach to everyone, and never refuse because someone raised a complaint.
Can I give a bad reference if it is true?
You can give an honest one, and it must be accurate and not misleading. But a negative reference invites a dispute about fairness, so most employers give factual references in difficult cases instead.
Do I have to mention a disciplinary?
A concluded disciplinary is a fact, but including it needs care and it must not give an unfair overall impression. An unconcluded allegation should not be presented as a finding at all.
Can I mention their sickness absence?
Avoid it. Disclosing health or absence information can lead to a disability discrimination claim, and it is rarely appropriate for the new employer to be asking at that point.
Key takeaways
- There is usually no legal duty to give a reference, outside regulated sectors or where a contract requires it
- Refusing for a discriminatory reason, or because someone complained, is victimisation
- If you give one it must be accurate, fair and not misleading overall
- Leave out health and absence information, and anything about grievances or claims
- A factual reference of job title and dates is the safest answer in a difficult case
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