Can HR give a bad reference in the UK?

If you’re an HR professional who has been asked to provide a reference for a bad former employee, then it might be tempting to give their potential future employer a warning. But although writing a “bad reference” isn’t technically illegal, it is risky business – and could land you in legal hot water.

First, let’s bust that myth – giving a bad reference is not illegal

There’s a myth that says UK employers are not allowed to give a “bad” reference for former employees. This is simply untrue – it is perfectly legal for you to write a negative reference, in the same way that it is perfectly legal for you to write a positive reference.

The main guiding principle, as per the ACAS website, is that your reference “must be accurate and fair.” Outside of these parameters, it’s pretty much fair game!

What’s more, is your reference does not need to be limited to the person’s ability to do the job. You are perfectly entitled to give a “character reference”, too – which might talk about the type of person they are at work, for example.

However, before you start penning that 1,000-word essay on how much you hate Richard because of that time he stole your lunch… you may want to be aware of the risks of giving a “bad reference”.

References must be accurate and fair

This guiding principle of a reference being “accurate and fair” is an important one, especially when it comes to giving a “bad reference”. Because suddenly, you’ve got to think about what is going to be seen as accurate and fair, and what is going to be seen as your subjective opinion on a person’s traits.

For example, if I describe you as a horrible person, it’s hardly hard evidence that you’re actually horrible. In fact, what you’re actually doing by giving your opinion on a person, is you’re opening up the door for them to legally challenge your reference as being “inaccurate” or “unfair” – and where personal opinions are involved, this is a very easy argument to make.

And even if you feel like you are stating negative information in an objective way, it’s not always going to look like that where the courts are concerned. For example, when this manager mentioned in a reference how much time a former employee had had off work, it could be argued that this information was accurate. But by failing to mention the circumstances surrounding this off-time, it was deemed as unfair – and therefore, the employee won the tribunal.

Don’t flirt with discrimination

Another issue with providing a “bad reference”, is that it opens you up to a discrimination claim.

If what you have said negatively about your former employee could be seen as something discriminating against one of the nine protected characteristics in UK law, then you could be opening yourself to a world of pain. Even if you don’t feel like what you’re saying is discriminatory, it might not be too difficult for somebody to interpret it that way – so you’re flirting with danger.

Remember that successful claims for unfair or misleading references often end up with substantial pay-outs in court. So what is the safe option, when asked to give a reference for an employee who you don’t feel deserves it?

Keep your reference simple

You are not usually legally obliged to provide a reference at all. Unless, of course, you made a written agreement to do so – or if you work in a regulated industry, such as financial services.  For this reason, some HR managers make a point of not providing references as a general rule.

But another option is to simply stick to the facts, and keep it simple. Take all personal opinion out of the subject, and confirm key points such as:

• The person’s position or job title
• Their dates of employment
• The nature of their departure, e.g. whether they resigned, were made redundant, or had their employment terminated

And that’s it! You don’t actually need to include anything more than that, if you don’t want to. And the more simple you make your reference, the less likelihood there is of it coming back to bite you due to negative interpretation.

I hope this has helped you to understand references and how they work under UK employment law. But please remember that this article does not constitute legal advice – it is simply a commentary on some of the case studies and publications surrounding this topic. If you are seeking legal advice, please consult an HR law professional.