To answer the question ‘can I refuse to give a reference?’ we look at UK employment law and myth busting.
There’s a lot of urban myths around what you can and can’t say in a reference. The golden rule is not to say anything which you cannot support with evidence.
You shouldn’t give a misleading picture by leaving out information which is either damaging or advantageous. But can you refuse to give a reference altogether?
Can I Refuse to Give a Reference?
Yes. Contrary to popular belief, there is no legal obligation on an employer to provide a job reference for a current or former employee.
Of course there are exceptions to this rule. If an employer has specifically agreed to give a job reference then they must. An example of this is as part of a termination agreement or legal settlement.
Only employees who have been dismissed are legally entitled to receive written reasons for their dismissal. These account for a very small proportion of job applicants.
Some organisations may enforce a policy to never give job references. Refusal to give a reference can lead prospective employers to assume that the employee left under a cloud.
It is therefore usual practice for employers to give references. This may merely include confirming basic factual information such as dates and capacity in which employed.
Employment Law UK
What are my Legal Obligations in Giving References – to the Employee?
When supplying a reference in respect of a current or former employee you owe a duty to that employee to take reasonable care to ensure that the reference is fair and accurate.
If it is not fair and accurate and the employee suffers loss as a result, s/he can sue you for damages on the grounds of negligent misstatement.
If you knowingly provide an inaccurate reference, which is either derogatory or contains false information and is designed to prevent the employee getting the job, the employee could have grounds to sue for defamation or malicious falsehood.
If that suit is successful, you could be liable for substantial damages. There is currently no upper limit to the damages available in High Court action.