Seeking a reference from an applicant’s previous employer is a standard part of the recruitment process. 

You are encouraged to write references with the utmost amount of honesty and accuracy, but this will understandably become more difficult when writing a reference for a troublesome former employee.

What are the laws surrounding references?

Although you are under no legal obligation to provide references, many employers do so by default.  Some regulated industries such as finance and healthcare may even require a reference as a compulsory part of the recruitment process.

However, increasing numbers of employers have started refusing references for certain employees when they have very little positive comments to make about them. This alone speaks volumes, as it’s highly unlikely you would feel confident in hiring someone if their past employer refuses to provide you with a reference. 

Alternatively, the former employer might choose to state only facts such as the length of a worker’s employment and their daily duties as set out in their contract of employment, in order to keep things impartial.

This is generally done in order to avoid any possible legal disputes occurring when bitter employees disagree with the reference, especially if they don’t end up getting the new job they applied for. 

Employers are also advised against writing a falsely positive reference for substandard employees, as new employers may rely on these references and giving an employer a misleadingly favourable reference about an inadequate employee could potentially land them in complex legal trouble as well.

Can former employees take action against me?

If an employee receives a bad reference that they strongly disagree with, they may try and pursue a victimisation or defamation claim for damages in court. However, the chances of this claim succeeding are slim; the employee must prove how the reference was inaccurate and how it has affected their chances of finding new employment. 

If you find yourself in this situation, the best thing you can do it gather proof to justify your decision, such as obtaining copies of performance reviews or attendance records. 

Avoiding discrimination claims

You should also be able to demonstrate that your reference writing policy is fair and consistent which you could do by sharing examples of previous references. 

It’s important to remember that willingly writing references for some staff and declining to do so for others could be seen as discrimination, so it would be worthwhile to devise a reference policy as well as sticking to your reference processes for all employees. 

Avoiding a contractual breach

If the employment contract you have created for your staff explicitly states that they are entitled to a reference, you must comply with the terms of the contract. It’s likely that refusing a reference would leave your employee feeling somewhat disgruntled and if you were under a contractual obligation to do so, they could act on this bitterness and seek damages from you for a breach of that contract. 

Dealing with reference requests from bad employees

If a former difficult employee seeks a reference from you, it would be in your best interest to write as little as possible.  You should stick to the facts of their employment and avoid making any comments that refer to their personal qualities or character.

 In some cases, you could include recommendations to the new employer. You could suggest that the employee’s performance could be improved with certain support; although you must refrain from making speculations for the future. 

We understand it might be tempting to let your opinions influence the reference; however we have seen cases of employers landing themselves in trouble for failing to be professional and objective across of all their company practises.