How to deal with a bad reference – what are your rights?
False References – Employment Law UK
We’ve heard it time and time again that “a bad reference cost me a job” and that a previous employer gave an untrue reference. When it comes to false references in UK employment law, there can be a number of routes to take in order to begin the claims process.
It’s not entirely uncommon to be provided with a bad reference from a previous employer that contains false or incorrect information. In the first instance, it is always wise to contact your previous employer to see if you can reach an agreement as to what will be included in any future references.
Some employers will provide a different reference after dismissal if you are struggling to find work because of a negative one, and other employers will want to avoid defending a negligence claim. You can also communicate with any new employers to explain the situation with your reference.
If you suffer any monetary loss or damage as a result of having a reference that contains inaccurate information, then there could be grounds for a negligence claim. You must be able to prove that the information contained in the reference is misleading or untrue and either has impacted your ability to get a new job, or it may harm your future prospects. It also has to be proven that your former employer didn’t take reasonable care when preparing the reference.
This s a civil claim brought in the County or High Court.
Discrimination and Victimisation
Your previous employer may be acting unfairly if the reason you received a poor reference is because of one of the “protected characteristics” outlined in the Equality Act 2010. This can be race, sex, sexual orientation, disability for example. You may have grounds for a claim for Direct Discrimination in the Employment Tribunal if you received a poor reference because of this.
Also, under the Equality Act you may also be able to make a claim if an employer or former employer has given a bad reference as an act of Victimisation because you did what is called “a protected act” to include: (1) bringing a claim under the Equality Act 2010; (2) giving evidence or information in connection with proceedings under the Equality Act 2010; (3) done any other thing for the purposes of or in connection with the Equality Act 2010 or (4) made an allegation that your employer or former employer have contravened the Equality Act.
These are claims brought before an Employment Tribunal.
Employee Reference Defamation
Defamation, also referred to as slander or libel, is the act of damaging the reputation of someone. This can be said about incorrect or false statements contained within your reference, and if a claim is successful you could be entitled to compensation for financial loss and emotional distress.
This is a civil claim not a Tribunal claim.
Does an Employer have to provide a reference?
An employer is under no legal obligation to give a former employee a job reference at all, so if your employer refuses to give a reference they are well within their rights. However, if they do give a reference, they are under a legal duty to not give a false reference. This is why many employers only provide factual references stating the name, job tile and dates of employment only to avoid being held liable for any inaccurate more detailed job references.
Can you sue someone for giving you a bad reference?
If an employer gives an inaccurate or negligent job reference, the employee can sue their former employer to recover damages. This claim is brought in the County Court NOT the Employment Tribunal. The former employee must have suffered financial loss ie. that the ex-employee failed to get a new job because of the bad reference and lose the income that new job would have provided. Legal Aid may be available to assist you to pursue such a claim.
Defamation claims, when it comes to bad employee references, are quite common. However, they are also difficult to prove and largely depend on the circumstances surrounding the claim. It must be proven that the employer provided a poor or false reference with malicious intent. If the reference was provided without malice and the employer believed the contents of the reference to be true (even if they are untrue), then they can’t be successfully sued for defamation.
Before any such claim can be entertained you really need to obtain a copy of the offending reference or the detail of an oral one. You may wish to make a Data Protection Act or Subject Access Request to secure this information from either the provider of the reference or the recipient. More information can be obtained from the ICO website, although this has been made all the more difficult by virtue of a change in the law which suggests that references are not disclosable.
How may we assist you?
We can deal with any Employment tribunal claims and whilst we do not ordinarily undertake litigation in the Civil Courts, we may be able to assist you on a No Win No Fee basis by sending a pre-action protocol letter before action to see if it is possible to settle any such claim without the need for you to issue proceedings in the Civil Courts.
Call us on 0800 612 9509 or email: firstname.lastname@example.org or complete one of our Contact Forms.