Do I have to provide one?
We get asked this question a lot more than you might think, and the short answer is no, not usually.
There are certain sectors, like Financial Services, where it could be a legal requirement, however in most cases for employers there is no legal obligation to provide a reference.
If you do provide a reference, you need to make sure it is fair and accurate. You can also choose how much information you want to give.
Previous employers may feel hesitant about providing a reference for many reasons, the most common we see is either that the relationship didn’t end well but they don’t wish to hinder the ex-employees future career prospects, or they don’t want a new employer to hire an unsuitable candidate but are hesitant about saying anything negative.
So, what can you do?
If you don’t wish to comment on an employee’s performance or reason for leaving as it could impact their ability to get a new role, you can just provide a basic standard reference. You can confirm their job title, start date and end date (you can also add salary if you wish). If a new employer sends you a long reference form to complete, you can just reply with these basic details instead and reply that as a matter of policy you only provide basic details. Increasingly, employers tend to opt for this type of reference. The problem on the receiving end is that it provides very little to go off, other than confirming the new employee’s previous place of work and length of service.
However, if you really believe the ex-employee is an unsuitable candidate and you want to let a future employer know on receipt of a reference request, you can be honest, just ensure that your reference is fair and accurate. You must avoid giving a subjective opinion, one that cannot be supported by the facts.
So yes, if the employee was let go for gross misconduct, you can disclose this in their reference, however, you must have the evidence (dismissal letter etc.) to back it up. An employee can request to see the reference sent to their new employer under a data subject access request. The employee can also take their previous employer to court if they feel their reference was inappropriate and it costs them a job. However, they must be able to show the information given was misleading or inaccurate and they suffered a loss because of it.
It is good practice to have a company policy on the provision of references, explaining what information can be provided and by whom. For example, some companies will only allow the HR department to complete reference requests for ex-employees as opposed to their line managers.