Giving references – our top tips

Sep 28, 2020 | Termination

When someone leaves your employment, regardless of the reason, it is likely you’ll be asked for a reference for them at some point. There are lots of misconceptions and concerns around giving references, with managers not being clear about what they can/can’t or should/shouldn’t say. With that in mind, here are six top tips about giving references for your former employees.

1. Confidential or not?

Employees and ex employees can make Data Subject Access Requests (DSAR) to see information held about them, and this could be either a request to you as the ex employer or to their new employer.

There is an exemption in the Data Protection Act 2018 permitting an organisation holding a reference given in confidence to withhold it in the event of a DSAR. So you can refuse to disclose a reference you have given in confidence to a new potential employer in the event your ex-employee wants to see it. However, although the exemption would also apply to the organisation receiving the reference, you obviously cannot guarantee that the new employer will take advantage of the exemption – they may decide to disclose the reference anyway. Of course, if the reference was accurate, that shouldn’t be a problem…

2. Negative reference “not allowed”?

This is a common misconception; that employers are not allowed to give bad references. In truth, there is no such restriction. References must be accurate, and not give a misleading overall impression. To avoid the risk of legal action, this means that you need to be able to back up anything you say, and everything you say must be known to the employee in question.

That means that documented performance concerns or live disciplinary warnings can be mentioned if you wish, whereas if the employee had no idea their performance wasn’t up to scratch, you shouldn’t complain about how badly they did their job when asked for a reference.

3. Can you refuse?

There is no obligation to give a reference (with a couple of exceptions in specific sectors), so if you don’t want to do so, you can refuse. However a refusal is likely to be interpreted as meaning that a reference would be very bad so do bear that in mind. A simple factual reference giving dates of employment might be better in circumstances where you don’t feel you can say anything positive.

4. Special categories of personal data

Attendance record is one of the pieces of information often requested in a reference. Here you need to be aware of the difference between personal data and special categories of personal data. The employee in question is likely to have given permission for you to disclose personal information, which would include, for example, how many days absence they’ve had in the past year. They are unlikely to have been asked for, or given, permission for you to disclose medical information, such as details of what they were actually off sick with.

5. You have a duty of care

When giving a reference you have a duty of care to both the ex-employee and to the new employer. This means you must take reasonable care in giving a reference to ensure it is accurate and doesn’t paint a misleadingly negative picture of the employee, but it also means that the recipient of the reference could potentially take legal action against you if a negligent, careless or misleading reference given by you causes them financial loss.

An example would be if you dismissed someone for gross misconduct after catching them stealing from the till, and then gave a good reference to a potential employer for a role where they would be handling cash. In those circumstances, it would be sensible when dismissing the employee to advise them that you have a duty to be honest in a reference, and it might therefore be better if they don’t give your details to future potential employers as a referee.

6. Adopting a consistent approach

It is usually sensible to adopt a policy on giving references and stick to it. You could for example require any requests for references to be dealt with centrally, rather than by individual line managers, to ensure control is kept over what references are going out in the name of your business. This enables you to reduce your legal exposure somewhat.

In terms of how much information to give, some feel more comfortable giving standard factual references across the board, with dates of employment, job titles and the like. There is no doubt that this is the safest approach, although it seems a shame not to give a good reference with more information if you can. Just stick to what’s factual and you should be fine to complete questionnaires you are sent or give a bit more detail about someone’s performance in their job if you are so inclined.


If you need any further advice on giving references, do get in touch.