Employer References: welcome guidance from ACAS

Law firms and other businesses should note helpful new guidance on giving employment references which has just been published by ACAS. Particular care should be taken in the case of giving bad references.

The giving of references can be a sticking point for many employers because they know that if they are not accurate, particularly in the case of a ‘bad’ reference, they could face legal action. Yet employers are frequently and routinely asked for references for ex-employees. Whilst there is usually no legal obligation to provide a reference on request, employers must ensure the references they do provide are fair and accurate.

The ACAS guidance, Employment References, sets out important guidance on giving references about employees, particularly addressing the following issues:

  • What is an employment reference?
  • Does an employment reference have to be provided?
  • What can an employment reference include?
  • When are employment references needed?
  • Job offers and references
  • Can an employer give a bad reference?
  • Resolving problems with references

A key point is that an employer reference gives important information to a potential employer which will help them in making its decision whether or not a job applicant is suitable. In providing a reference, the employer can give as much information as they wish, and can just stick to basic facts if they so wish. Ideally though, employers should have a formal policy governing how they deal with requests for references.

Critically, any reference given about someone must be true and accurate, and should be a fair reflection of the individual. Any objective opinions given should be based on facts (thus avoiding subjective views about the person).

If the employer does decide to provide a reference, it has a legal duty of care towards the job applicant to take reasonable care in giving a reference. A bad reference will most probably mean the job application will be unsuccessful. If that reference is true and accurate – there should be no come back; however, if the employer breached its duty of care by giving a bad reference, they could face a negligence claim by the ex-employee.

It’s particularly worth noting the guidance on when it’s ok to give a bad reference. Some employers may prefer not to give one at all than to give a bad reference, or instead may chose to discuss it with the individual. The risk to an employer of a less than positive reference is a potential damages claim by an aggrieved job applicant.

The guidance also suggests ways in which to resolve problems with references given. It also explains the status of references in the case of a conditional job offer and where there is an unconditional job offer



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