Acas publishes new guidance on employment references

ACAS has published new guidance on employment references aimed at both employers and employees, based around the typical questions it receives on the ACAS helpline. The guidance makes clear that there is usually no legal obligation on employers to provide a reference, but employers who do give them must make them true, fair and accurate.

The guidance covers:

  • What is an employment reference?
  • Does an employment reference have to be provided?
  • What can an employment reference include?
  • When are employment references needed?
  • Job offers and references
  • Can an employer give a bad reference?
  • Resolving problems with references.

Advice provided in the guidance includes that:

  • Employers must only seek a reference from a job applicant’s current employers with their consent
  • If a conditional job offer is made, it can be withdrawn if the job applicant doesn’t meet the condition of supplying satisfactory references
  • Potential employers should remember that a referee may not provide a reference or might inaccurately suggest the job applicant is unsuitable – in these circumstances, it may help to discuss any concerns with the job applicant directly first
  • Job applicants who are unhappy with a reference can ask for a copy that was sent to their potential employers and may be able to claim damages in court if they can prove it was misleading or inaccurate and resulted in the withdrawal of their job offer.

Unfortunately, the guidance only touches briefly on the impact of the General Data Protection Regulation (GDPR) on the provision of employment references. Before providing a reference on an employee or ex-employee, employers should ensure they first have the individual’s express consent, including consent not just to the provision of the reference itself but also to the identity of the intended recipient.