Short answer: Yes. A UK employer can give a negative reference if it is accurate, fair, not misleading and supported by evidence. In most cases, you do not have to give a reference at all, unless a contractual commitment, settlement agreement or applicable regulatory requirement says otherwise. A short factual reference confirming job title and employment dates is often a sensible default.
An employment reference can create risk in either direction. An unjustifiably glowing reference can mislead the recruiting employer; an inaccurate or unfair negative reference can cause loss to the former employee. A clear policy helps you decide what to say, who can say it and when a request needs legal review.
Do I Have to Give an Ex-Employee a Reference?
Usually, no. There is no general legal requirement to provide a reference for a current or former employee. However, check whether:
- Your employment contract includes a commitment to provide one.
- A settlement agreement requires a reference, often using agreed wording.
- Sector-specific rules apply, such as requirements for certain Financial Conduct Authority (FCA) or Prudential Regulation Authority (PRA) regulated roles.
Refusing a reference you are contractually required to give can lead to a claim where it causes loss. Separately, withholding a reference for an unlawful reason can expose you to liability, even where there is no general duty to provide one.
If reference wording forms part of an employee’s departure arrangements, see our guidance on settlement agreements and when to use them.
What Can an Employer Legally Say in a Reference?
You can decide how much detail to provide, subject to your policy, agreed wording and applicable regulatory requirements. Whatever the format, the reference should:
- State accurate facts. Check dates, job title and other information against your records.
- Give a fair overall impression. Do not create a misleading picture through selective wording or omissions.
- Support opinions with evidence. Comments about performance, conduct or suitability should have reasonable grounds.
- Stay relevant. Avoid irrelevant personal information or details that could be used in a discriminatory way.
A negative reference is not automatically unlawful. The issue is whether it is accurate, fair and supportable. An inaccurate or misleading reference that causes loss may lead to a damages claim; discriminatory references create separate risks.
Basic or Detailed References: Which Should You Give?
A basic factual reference normally confirms the employee’s job title and employment start and end dates. This is often a practical default because it limits the scope for unsupported comments. Apply your policy consistently, while allowing for contractual and regulatory obligations.
A detailed reference may cover skills, experience, performance, reasons for leaving and current, relevant disciplinary records. Only include information you can substantiate. Avoid vague assurances such as “left in good standing” unless you can explain and support what they mean.
Need a consistent approach? Neathouse Partners can help you set out who is authorised to respond and what your standard letters should contain. Get a reference policy and template.
Can You Include Sickness Absence in a Reference?
A detailed reference may include relevant, accurate absence information, but you must follow discrimination law. Do not include absences linked to disability or parental rights, including maternity, paternity and adoption leave. Take particular care with pregnancy-related information and avoid disclosing protected characteristics.
References should not include details of reasonable adjustments for a disability. Read our guide to the duty to make reasonable adjustments for more on your obligations.
Many employers leave sickness absence figures out of routine references altogether. If a request asks for sensitive information, check the purpose and seek advice before responding.
Giving a Reference for a Dismissed Employee
You can provide an accurate reference for someone you dismissed. A reference can include the reason for leaving, but you do not automatically need to include that information in a basic factual reference. What you must avoid is misleading the recipient.
Before mentioning dismissal or misconduct, check:
- The recorded outcome and supporting evidence.
- Whether an appeal has changed, or may change, that outcome.
- Whether the information is current and relevant.
- Any settlement terms or agreed reference wording.
For context on disciplinary decisions, see our guide to what amounts to gross misconduct.
An unresolved investigation requires particular care. Do not describe an allegation as an established finding. If recent, relevant investigation information needs to be disclosed, the wording must fairly reflect its status and outcome. A neutral factual reference may be more appropriate, but regulated or safeguarding contexts may require a different approach.
Handling a disputed dismissal or a difficult reference request? Explore fixed-fee employment law support before sending wording that could create further risk.
Can an Employer Refuse to Give a Reference After a Complaint?
A reference must not become a way to retaliate against someone for exercising legally protected rights.
Giving an adverse reference, or withholding one, because a person made a discrimination complaint can amount to victimisation. Similar concerns arise where treatment is connected to a protected disclosure. Not every grievance has the same legal protection, so assess the circumstances rather than assuming all complaints are legally equivalent.
Keep personal frustration out of the response. Where a dispute is being settled, consider agreeing the reference wording as part of the settlement agreement.
Can the Employee See Their Reference?
An employee can ask to see a reference, but they are not necessarily entitled to receive it through a subject access request.
The Information Commissioner’s Office explains that confidential references provided for employment and certain other purposes can be exempt from subject access. The exemption applies whether your organisation gives or receives the reference. It is not limited to the former employer.
Make your confidentiality position clear in your privacy information, handbook or policies. If confidentiality is unclear, consider the request on its facts rather than assuming the exemption applies.
Even where a reference is confidential, write it on the basis that the subject may eventually read it. For wider record-handling considerations, see our guidance on GDPR and HR.
Reference Requests Before a Job Offer
Recruiting employers should normally request references at the final stage of recruitment, when making a conditional offer. Before approaching a candidate’s current employer, obtain the candidate’s permission.
Pre-offer health enquiries require particular care under the Equality Act 2010. Avoid treating an early reference request as permission to disclose sickness absence or health information. A basic factual response can avoid unnecessary disclosure; seek advice if the requester needs more detail.
What a Good Reference Policy for Employers Covers
Your policy should explain:
- Who can give references. Identify authorised HR staff or senior managers and set clear limits for line managers.
- What the standard reference contains. Define approved factual content and information that must be excluded.
- When fuller references are allowed. Set approval requirements and identify regulated or other exceptional situations.
- How responses are recorded. Keep a record of the request, recipient, wording and date.
- How telephone requests are handled. Prefer written requests and responses to reduce misunderstandings.
- What happens when records are limited. Do not speculate about a former employee where reliable information is unavailable.
- How confidentiality and personal data are handled. Align the policy with your privacy information and record-management practices.
Put the process in writing. Ask Neathouse Partners about an Employer Reference Policy and Template Reference Letters tailored to your business. Get a reference policy and template.
Obtaining References for Your Own Recruits
Tell candidates what references you need and obtain permission before contacting their current employer. Make the offer conditional on satisfactory references if you intend to rely on them before confirming employment.
Assess the response fairly. If a reference raises concerns, discuss them with the candidate and check the supporting information before deciding what to do. An unsupported negative comment should not automatically determine your recruitment decision.
Frequently Asked Questions
Can an employer give a bad reference in the UK?
Yes, if it is accurate, fair, not misleading and supported by evidence. A negative reference can be lawful; an inaccurate, misleading or discriminatory reference can create liability.
Do I have to give an ex-employee a reference?
Usually not. Check your employment contract, any settlement agreement and applicable regulatory requirements. Do not refuse for an unlawful reason.
Can I mention sickness absence in a reference?
Relevant, accurate absence information may be included in a detailed reference, but protected absences must be excluded. Do not include disability-related absence or absence connected with parental rights. Many employers omit absence figures from routine references.
Can I say someone was dismissed for gross misconduct?
You can include accurate, relevant information about dismissal, but check the evidence, outcome, appeal position and any agreed reference wording first. Do not present a disputed or unresolved allegation as proven misconduct.
Can the employee ask to see their reference?
Yes, they can ask either organisation. However, a confidential employment reference can be exempt from subject access whether held by the giver or the recipient. There is no automatic right to obtain it from the new employer.
Should a reference carry a disclaimer?
A disclaimer is not a substitute for accurate, fair content. Do not assume wording such as “given in good faith” will protect you from a claim. Have any disclaimer reviewed alongside your reference policy.
Get Help With Reference Policies and Difficult Requests
Neathouse Partners helps employers draft reference policies, prepare template letters and handle sensitive requests involving dismissal or settlement agreements.
Speak to Neathouse Partners about fixed-fee employment law support if you need help with a specific situation.
This article is general guidance and not legal advice. Seek advice on your particular circumstances before responding to a sensitive or disputed reference request.
