In order for prospective employers to know more about your qualities they usually ask for a reference from your current or former employer. Generally speaking, employers are not under a duty to provide a reference for a current of former employee, so if they don’t want to provide a reference usually they don’t have to. Moreover, if one is given, there is no obligation for it to be full, fair and comprehensive.
But, an employer may have to provide a reference where:
• There was an express contractual obligation to do so (very rarely).
• There was an implied term given in the contract, e.g. the employer has traditionally given references in the past for employees of a similar level.
• A manager, or someone with authority, has assured the employee that a reference will be provided.
• An employee leaving after an internal dispute gets a reference as part of a compromise agreement.
• There may be a regulatory requirement on the employer to provide a reference and this may require specific information.
If an employer provides a reference what can they say?
Employers have a duty to take reasonable care not to give misleading information about the employees. This means that they should avoid being unfairly selective in the information they provide.
If a reference is given in accurate or is deliberately misleading it may amount to defamation, by which means that, you could claim for libel. (More information on constructive dismissal)
What can you do if your employer refuses to provide a reference?
If an employer refuses to give a reference, the employee could try to bring a claim for victimisation. Such claims have succeeded in the past where employees have been able to show that the reason they were not given a reference was because they had previously made a discrimination claim.
If you believe your past employer’s refusal to provide a reference is victimisation or the reference provided harmed your future work prospects then the onus is on you to establish that:
• The information provided in the reference is misleading;
• Providing such misleading information is likely to have a material effect on the mind of a reasonable recipient of the reference to the detriment of the employee;
• The employer was negligent in providing such reference.
So if you need a reference, keep it in mind that employers don’t have the duty to do it but if they fall within the exceptions listed above you may be able to get a reference.