References

Information in a reference

References are usually sought from current and former employers.

Most employers will ask for references to be submitted in writing, either in the form of an open unstructured letter or in a standard form.

All data given in a reference should generally be based on fact or capable of independent verification. Referees should be very cautious about giving any subjective opinion (which cannot be substantiated with factual evidence) about an individual's performance, conduct or suitability.

In law there is nothing to prevent a prospective employer asking if you have ever been subject to disciplinary action or an investigation. If you would like guidance on how to approach this issue with potential employers, contact us.

Questions about health and disability during recruitment

In general, prospective employers are prohibited from asking questions about your health or disability prior to offering you a job. This includes questions about previous sickness absence. There are a small number of exceptions to this rule and gov.uk has detailed guidance in this area.

Questions about sickness absence can be asked after a candidate has been offered the job (either conditionally or unconditionally) or has been placed in a pool of successful candidates. Even then the purpose of these questions should only be to clarify that a person's health or disability will not prevent them doing the job. They should enable the employer to consider whether any 'reasonable adjustments' can be made. See Equality and Human Rights Commission (EHRC) and the Equality Commission for Northern Ireland for more guidance.

Employer refuses to provide a reference

There is no general duty on an employer to provide references for a serving or past employee unless there is a term to that effect in the employment contract. There are exceptions to this general rule in certain regulated sectors, such as the finance industry. 

Nevertheless, such a term may be implied into the contract where: 

• there is a contract of employment or services
• the work under the contract is of a type where it is normal to require a reference from a previous employer 
• the employee cannot be expected to find work of that type unless his or her employer provides a full and frank reference to a prospective employer. If an employer refuses to provide a reference for an employee because of a ‘protected characteristic’ this may amount to discrimination. If you are in this position read our discrimination advice.

Seeing a copy of your reference

Under the rules of the Data Protection Act the person writing a reference does not have to disclose its content to the person about whom it is written. The person receiving a reference is not subject to this exemption and should, in most circumstances, disclose the reference if asked to do so by the person the reference is about.

Before deciding to disclose the reference the recipient must consider their duty of confidentiality towards the author of the reference and/or any other third party mentioned in it. The Information Commissioner’s Office (ICO) provides guidance in Employment Practices Data Protection Code.

If a new - or prospective - employer withholds a reference written about you, you can ask the Information Commissioner's Office to investigate the situation and determine whether you are entitled to see it.

If you are experiencing difficulties obtaining a copy of the reference, contact us.

Negligent, defamatory or discriminatory references

Discrimination

If you believe that a reference given about you is discriminatory you could potentially take action against the author of the reference. Please see our discrimination information and contact us.

Negligence

Employers owe their employees and ex-employees a duty to take reasonable skill and care to ensure the accuracy of a reference given about them. The duty also extends to a prospective employer who may reasonably rely on the accuracy of the reference provided.

You may have a legal claim for negligence if your employer has given a negligent statement about you that subsequently causes you loss. A reference may be negligent in law if it is unbalanced or contains statements which are untrue.

If you have lost a job following provision of a reference that you think falls under one of the above categories or is otherwise unfair, contact us.

Defamation

If a reference contains a false or unsubstantiated statement that damages your reputation, then in theory you may be able to take legal action in defamation. However, the chances of a successful claim are remote. We will not support a defamation case.

Providing a reference for someone else

If you have been asked to provide a reference for someone else you need to clarify whether you are being asked to provide an employment reference or a character reference. Your employer may have strict policies in place regarding who can provide employment references and failure to follow these policies could result in disciplinary action being taken against you.

In almost all cases our members experience no problems when giving character references. Character references are an important way for new employers or investigating committees to gather evidence about somebody's character.

In law no one can be compelled to supply a character reference. However, registered nurses must follow the NMC Code, which requires registrants to cooperate with all investigations and audits.

If you do decide to provide a character reference you should be open and honest. In certain circumstances, people who give dishonest references can be sued for negligence. Any dishonest reference you give could also potentially lead to disciplinary action from your employer and, if you are a registered nurse, you may be reported to the NMC for investigation.