Giving and asking for employment references

These rules apply across the UK.

When a former employee asks for a reference

You can refuse to give a reference, or limit what you say. If you break a written promise to give one, for example in an employment contract or a settlement agreement, the person may be able to claim damages in court.

Financial services firms

If your firm is authorised by the FCA and falls under the Senior Managers and Certification Regime, you must give a regulatory reference to another firm that asks for one and states its purpose. Include everything you know that is relevant to whether the person is fit and proper.

The rule works both ways. When you appoint someone to a role it covers, you must take reasonable steps to obtain references from their employers.

Keep a reference fair and accurate

A reference you choose to give must be fair and accurate. It can cover performance and whether the person was dismissed. It can also be brief: job title, salary and dates of employment.

If you include an opinion, keep the evidence to support it, such as warning letters. A person who loses out because of a misleading or inaccurate reference, for example a withdrawn job offer, may be able to claim damages in court.

Leave out disciplinary records and investigations unless they are recent and relevant. Leave out absences linked to disability, adoption, maternity or paternity leave. Leave out anything that could be used to discriminate against the person.

You must follow discrimination law when you give, ask for or check a reference. A reference policy can limit what you include and who may give one.

Subject access requests for references

A reference is personal data about the person it describes, so they can ask for a copy in a subject access request. That applies to a reference you wrote and to one you received about a job applicant.

References given in confidence are exempt from the right of access. Tell staff and the people who give you references whether you treat references as confidential. Do it in your privacy information, staff handbook or policies, and when you ask for a reference.

If you have not said whether you treat references as confidential, decide each request on its own facts. Weigh five points.

• any clear assurance of confidentiality you gave the referee
• any reasons the referee gives for withholding consent
• the likely impact of the reference on the person asking
• any risk that disclosure poses to the referee
• the person's interest in checking that the reference is accurate and true

The exemption does not remove the right to correct. A person can still ask you to correct a factual error.

Where to get help

If you are unsure whether you must give a reference, or what to put in one, ask the Acas helpline. In Northern Ireland, ask the Labour Relations Agency. For data protection questions, ask the Information Commissioner's Office.