Bad Reference
Is it illegal to give a bad reference?
Is it illegal to issue a bad job reference? The legality of employment references has been discussed for some time. In this article we will address all frequently asked questions and provide answers to them:
- Is it legal for an employer to issue a bad job reference?
- If you give a bad reference, how can you do it?
- And how can employees challenge a bad job reference?
Is it illegal to give a bad reference?
In short: no. It is completely legal for an employer to give former employees a bad reference. It depends on the following: If an employer issues a reference to a former employee, it must be truthful.
This can lead to two different results:
- If the employee has performed well in the company and no disciplinary action has been taken against him, the employer will most likely provide a good reference.
- If disciplinary proceedings were initiated against the employee, which led to his dismissal, the employer has the right to issue a bad reference.
To protect themselves, the employer can decide to only write a simple reference or not to write one at all. Issuing a job reference is not an obligation for the employer, unless otherwise agreed in the employment contract.
However, it may happen that an employee applies for a job in a regulated industry. In some cases, references are mandatory.
Authorities such as the Financial Conduct Authority require references from former employers. With simple employment references, employers only write down the facts of the employment relationship:
- When did the employee start working for you?
- What did the employee do (what position did he have)
- When did the employee stop working for you?
A bad job reference usually takes the form of a complete job reference in which the employer lists elements of the employment relationship, such as: E.g:
- Characteristics of the employee that were relevant to the job
- Disciplinary action taken against the employee
- Whether the employee was fired (and why)
Can an employee challenge a bad job reference?
If an employee receives a bad reference, he or she can dispute it on the grounds that the reference was incorrect:
- Misleading: Misleading references can give the new employer the impression that the employee has a certain characteristic that makes him or her unsuitable for the job.
- Discriminatory: If the employment reference discriminates against the employee in one of the categories of the Equality Act 2010 such as gender, race, religion or age.
- Inapplicable: If the employer simply wrote an employment reference that is factually incorrect.
The employee must prove that the bad job reference caused damage. He must also prove that he suffered damage as a result, e.g. B. withdrawal of a job offer.
The steps to dispute a bad reference
Employees can challenge a bad reference they received from their ex-employer. Below are the steps commonly taken:
Conversation with the potential employer
As a rule, the employee will speak to his new employer about the points mentioned in the employment reference.
They will try to “fix” the things in the reference by discussing them with the new employer. The employee could try to provide new details about the matter, take a probationary period, or even offer to get references from other employers.
In addition, the employee could ask to see his reference and to know the identity of the person who wrote the reference in question.
If the problem with the bad job reference persists, the employee can take legal action.
Initiate legal action
An employee can take legal action if they receive a bad reference. Typically he will pursue one of two options:
- File a lawsuit with the Labor Court: If the employee files a lawsuit with the Labor Court, he must file it within the statute of limitations, i.e.within a maximum period of three months from the date on which the discrimination took place.
- You can also lodge your claims with another court, e.g. a district court: Employees can also assert their claims in another court, especially if they have suffered damage due to inaccurate or misleading certificates.
Frequently asked Questions
Here we answer the most frequently asked questions when it comes to not-so-good references:
What happens if you receive a bad job reference?
This can vary from employee to employee and situation to situation. Sometimes the employee has a job offer revoked because of the poor reference, so the employee attempts to claim that the reference was inaccurate, misleading, or discriminatory. In other cases, the employee is simply trying to come to terms with his new employer.
Is giving bad references illegal in the UK?
It is legal to give a former employee a bad reference. However, according to the Equality Act 2010, the employment reference must not be misleading, inaccurate or discriminatory.
Can an employer issue a negative employment reference?
Yes, an employer can issue a negative employment reference to their former employees. Many employers protect themselves by only issuing simple references that only state when the person started working at the company, their salary, their position and when they stopped working.
What are employers allowed to mention in job references?
The employer can choose between a simple and a detailed employment reference:
The simple employment reference simply states when the person started working for the company, what their salary and position was and when they stopped working for the company.
In a detailed employment reference, the employer can provide additional information, e.g. whether disciplinary action was taken against the employee, which character traits are relevant to the job, what the working hours were and why the employee left the job.