Your rights about references

Most employers do not have to give a reference. If they do, it must be true, accurate and fair, and it can include facts you would rather it left out, such as a disciplinary warning, provided they are accurate and not misleading. Public sector jobs work differently in practice. Safer recruitment rules require references for jobs in schools and the NHS, so your current and former employers will almost always be asked, and most give at least a factual one.

Does your employer have to give one?

There is no general legal duty to give a reference. Some regulated sectors, such as financial services, have specific rules, and your contract or your employer’s policy may promise one. Many public bodies give a reference to every leaver as a matter of policy.

An employer cannot refuse for an unlawful reason. Refusing because of a protected characteristic, or because you complained about discrimination, can be discrimination or victimisation, and that protection continues after you have left.

What a reference can say

The employer must take reasonable care that the reference is true, accurate and fair. In practice:

• Facts must be correct: dates, job title, salary and reasons for leaving.
• Opinions about your performance or conduct must have a sound basis.
• It should not leave a misleading impression, for example by mentioning one complaint without saying it was not upheld.
• It can mention a disciplinary sanction that is still live, and in safeguarding cases it must disclose relevant concerns.

Many employers now give only a short factual reference with your dates, job title and sometimes your reason for leaving. That says nothing bad about you. It is often the policy for all leavers, particularly in large trusts and councils where HR writes the references instead of your manager.

References in schools and the NHS

Safer recruitment in schools in England requires references to be checked before an appointment, and they must ask about safeguarding concerns and disciplinary matters relating to children. A school is expected to follow up vague or inconsistent answers. Allegations found to be false, unsubstantiated or malicious should not be included. Our guide to safer recruitment explains the wider process.

NHS employers follow the NHS Employment Check Standards, which usually involve references covering the last three years of employment. Your new employer may contact the HR department directly, and some trusts ask about sickness absence in the reference request. See references in public sector recruitment for the applicant’s side.

Job offers in these sectors are often conditional on satisfactory references, so a delay or a poor reference can hold up your start date. Our guide to conditional job offers covers what happens if a check comes back badly.

Seeing a reference written about you

Under data protection law you can make a subject access request for the personal data an organisation holds about you. Confidential references are exempt in the hands of the organisation that wrote them, so asking your old employer for the reference it sent may get you nowhere.

The organisation that received the reference is in a different position. It can still withhold parts, especially to protect the writer, but it has to consider whether to release it, and it often does. If you were turned down for a job and suspect the reference, ask the new employer. Write to them, say you are making a subject access request, and include enough detail to identify the reference.

A subject access request to your current or former employer will also cover what it holds about you more generally, such as your personnel file. The gov.uk data protection page explains how to ask and what to do if the organisation does not reply.

If a reference is unfair or inaccurate

Start by asking the writer to correct it, explaining what is wrong and giving evidence. Many problems turn out to be mistakes in dates or a misunderstanding about the reason for leaving.

If that fails, the options depend on the facts:

• If the reference was negligent and cost you a job offer, you may be able to claim for your losses in the civil courts. You would need to show it was inaccurate and that it caused the loss.
• If it was given because of a protected characteristic, or in retaliation for a discrimination complaint, you may have a claim in the employment tribunal. ACAS early conciliation comes first, and time limits apply.
• If it was in retaliation for whistleblowing, that can be an unlawful detriment.

These claims are hard to bring without advice, so start with ACAS or your union. Our guide to discrimination at work covers victimisation in more detail.

Agreed references

When employment ends through a settlement agreement or an ACAS COT3, the wording of a reference is often agreed as part of the deal. If you are negotiating an exit, ask for an agreed reference to be included, and make sure the agreement says who will give it and that other comments will not contradict it.