Most job offers given are conditional upon receiving a satisfactory reference.
It is important to carefully consider the wording of a job offer made to you. If it does not stipulate that the offer is subject to a reference (or another condition e.g. passing a criminal record check or proof of academic qualifications etc.), then you may have an unconditional offer.
Once you accept an unconditional offer you are officially an employee. The employer loses any opportunity they may have to cancel the contract with you and should they wish to terminate the contract, they would have to do so using the same processes as with any other employee of their company.
However, unconditional offers are few and far between and references are often an integral part of receiving new employment.
It is now common for employers to provide a basic (factual) reference which confirms an employee’s job role and length of service.
There is no duty on an employer to provide a reference, unless there is an agreement to do so (i.e. there may be a clause included in your employment contract) or if the employer is regulated by a body that requires references to be provided (for example in the financial services industry).
Employers have a duty to both employees and employers when providing a reference to ensure that references are truthful, accurate and not misleading. However, the references given do not need to be full and comprehensive.
What is meant by ‘not required to be full and comprehensive’?
The Courts considered this question in the case of Bartholomew v. London Borough of Hackney, a 1999 Court of Appeal case. This case involved an employee who was dismissed prior to handing in his notice, on grounds of alleged gross misconduct.
The old employer provided a reference to the new employer which explained that their employment relationship had ended from a voluntary severance while the employee was suspended for alleged gross misconduct and that the charges had lapsed on the employee’s departure.
The new employer withdrew their offer of employment to Bartholomew and Bartholomew sued his former employer for damages for negligence – but the claim failed. It was held that the statement was factually correct and was not misleading. A reference does not always have to be full and comprehensive. Had the old employer failed to mention the disciplinary proceedings, it might have breached a duty of care to the new employer seeking the reference.
Employers must be careful when providing references to ensure any statements made are accurate and are neither misleading nor discriminatory.
If you suspect a reference was not fair or accurate, was misleading or led to discrimination, you can try to challenge the reference.
How to challenge a negative reference
Speak to your new employer
Has the negative reference resulted in the job offer being withdrawn? If so, speak with the employer to attempt to address their concerns. Ask to discuss the contents of the reference, offer to provide other references, and discuss the option of a probationary period.
Ask either the new or previous employer for a copy of the reference
If speaking to the prospective employer hasn’t changed their mind, then ask for a copy of the reference – preferably in writing.
Neither employer is legally obliged to provide you with the reference but if your previous employer is unwilling to do so, this may be cause for concern that any reference was not accurate or was misleading.
It may also be worth speaking to your previous employer, and seeing if you could come to an arrangement between yourselves for future references.
Seek disclosure for the reference
Generally, employees have the right under GDPR (General Data Protection Regulations) to access information that organisations hold against them and can apply for this information to be released with a DSAR (a Data Subject Access Request).
However, there are exemptions under Schedule 2 of the Data Protection Act 2018. One of the exemptions is where a confidential employment reference has been provided. You will not be surprised to know that employers will often rely on this exemption. However, not all references are provided on a confidential basis.
It is arguable that the exemption referred to above could mean that the UK was in breach of the ECHR Article 8 right to a private life. It also doesn’t sit comfortably with an individual’s right to fairness and transparency. It is therefore likely that this will be reviewed in the future but for now, be mindful that you may experience road-blocks in obtaining a copy of your reference which may make the process of seeking legal redress difficult.
If you have been unable to obtain a copy of the reference, but have reasonable grounds to believe that the reference was either inaccurate or misleading, you would have the following options:
- If you suspect discrimination on the grounds of a protected characteristic, then you could utilise the ACAS procedure for asking questions about suspected discrimination. If your previous employer failed to engage with that process that may also be good grounds to commence an action in the Employment Tribunal to seek disclosure of the reference.
- Similarly, if you were proposing to commence a claim in the County Court, you could make use of the relevant pre action protocol for seeking disclosure of the relevant reference. A failure by the employer to provide such a reference in response to a letter before claim sent in accordance with the relevant protocol may give you grounds to make an application for pre action disclosure of the relevant reference. Indeed the threat of such action may secure disclosure of the reference.
Reasonable grounds may include the fact that you had an excellent attendance record, regularly received good appraisals and never had any formal or informal concerns raised about your conduct or performance during your employment with the previous employer.
As a final resort, take court action
If you have received a copy of a reference that is inaccurate or misleading, then you can pursue legal action for compensation.
Which court or tribunal should I pursue my claim in?
Civil/County Court claims:
Most claims for compensation based upon the provision of a negligent reference are pursued in the County Court. The relevant claim would be based on one or more of the following:
- Negligence – if you have suffered monetary loss/damages from a reference that has been poorly drafted and includes inaccurate information.
- Defamation – where incorrect or false statements are included in the reference which are damaging to your reputation. You could be entitled to compensation for financial loss and emotional distress in such cases.
- Malicious falsehood – where an employer has made the reference maliciously to deliberately sabotage your employment elsewhere.
Employment Tribunal claims:
In some cases pursuing a claim in the Employment Tribunal may be more appropriate. For example:
- Discrimination/victimisation – if your bad reference had been given or was linked to a ‘protected characteristic’ under Equality Act 2010 i.e. that you have been discriminated against your race, gender or sexuality. Alternatively, if you employer has reacted badly to the fact that you made a claim(or pursued a grievance) about alleged discrimination.
- Constructive dismissal – you claim constructive dismissal if a bad reference was provided to your new employer whilst you remain in the employment of the provider of the reference and you decide that you can no longer work for that employer.
Commencing legal action always carries risks. If you commence an action and are subsequently unsuccessful, you may be ordered to pay your opponent’s legal costs. Therefore careful consideration of your legal position and the options available to you is always essential.
Our solicitors at Linder Myers have successfully represented clients in negligent reference cases and are here to help if you require assistance.