Do I have to give my ex-employee a reference?

As an employer, there is no legal duty to provide a reference for a former or current employee. However, there are certain exceptions.

When to give an employee a reference

It’s mandatory for an employer to give an employee a reference if:

• It’s contractual; for example, if it’s included in the employee’s contract or settlement agreement, or it has been otherwise agreed between the employer and employee.
• The employment is in a regulated industry, e.g. by the Financial Conduct Authority (FCA)

Can I refuse to give my ex-employee a reference?

Yes, you can refuse to give an ex-employee a reference unless you are bound by the above circumstances.

If an employee asks for a reference but you do not wish to provide one, it is good practice to respond clearly and politely. It is important not to critique their capabilities within your response. There are some useful guidelines for declining a reference request here.

Some employers prefer to provide a simple reference that focuses on the dates of employment and the job title. If you have this policy, or indeed a policy not to provide references, this should be consistently held and should be made clear in any response to a request for a reference.

I need to write a reference for an employee; what should I include?

The reference should be accurate and truthful. If the employee had any shortcomings in their role, identifying these should never be malicious. If an employee suspects they haven’t gained a job because of a malicious or inaccurate reference, they could pursue a claim at an employment tribunal or civil court. Equally, the new employer could claim against you if you provided an inaccurate reference, e.g. it praised a particular skill set which they soon discovered was fabricated.

A work reference can be basic or detailed. Common points to include are:

• The employee’s job title(s) (while employed by you)
• Their dates of employment
• Details about their skills and experience
• Whether there are any current disciplinary records (if it’s a regulated sector)
• Their reasons for leaving

Employers should never provide a reference which includes details about:

• Absences related to a disability
• Absences related to maternity, paternity or parental leave
• Any reasonable adjustments that have been made

Often, employers provide a character reference (also known as a personal reference). This is more detailed and can include details about the employee’s character, e.g. their strengths and successes.

This guide from Acas is helpful for both employers and employees. Employers should seek legal advice if they don’t want an ex-employee to see a reference.

Further information

If you’re an employer and you need legal advice on references, or any other employment matter, such as employment contracts, settlement agreements or redundancy, our employment solicitors are here to help.

To speak to a member of our Employment Law team, call 0117 322 6602 or complete our online enquiry form.