Can my employer give me a bad reference?
I was recently offered a job, but two weeks later they told me they’d decided to recruit for a lower level position.
A colleague thinks my director may be giving positive written references and following them up with negative verbal references. I've never had any negative feedback, but if this is the case what can I do about it?
If you’re a member of a union it may be worthwhile talking to them on an anonymous basis to find out what the organisation’s policy is on verbal references; many organisations and companies have specific policies outlawing this practice. You should also be aware that it’s not illegal to give a verbal reference, even if it’s not good practice.
Under the Data Protection Act 1998, you aren’t entitled to see a reference given by your employer. This is because there is an exemption from the need to disclose data for people who give references. However, you can ask your new employer for a copy of the reference because there is no exemption from the need to disclose data for people who receive references.
It is quite likely that when your director gave the verbal reference a note will have been made of what was said. You should be able to see this as well.
A reference given by one employer to another about an employee has ‘qualified privilege’. This means that an employer will probably be able to say what they like about an employee. However, there are some limits. They must not:
- Give any information about convictions that are spent under the Rehabilitation of Offenders (Northern Ireland) Order 1978 unless the job in question is exempted.
- Maliciously make false statements.
- Negligently make a wrong statement.
The House of Lords has decided that an employer giving a reference about an employee owes them a duty of care. This means the employer could be sued for negligence if the reference contains inaccuracies that result in the employee suffering a loss. The reference could also be defamatory. The Court of Appeal has held that employers are under a duty to provide references which are true, accurate and fair, and which do not give a misleading impression of the former employee.
Whilst you can ask for an open reference, many companies may not be willing to accept them. But of course each organisation will have its own procedures.
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