References can be a tricky area - an employer may have doubts giving a reference where they have dismissed an employee for performance and an employee may have doubts as to what sort of reference an employer has given. However, it is rare that either employer or employee consult employment solicitors on this single issue, so we hope this section will be of assistance.
Generally, an employer does not have to provide a reference except when required to do so by statute (e.g., required by a regulatory body), term of the contract or expressly agreement (e.g., compromise agreements).
If an employer provides a reference they will owe the prospective new employer a duty of care under the tort of negligent misstatement. In practice, it is unlikely that the new employer would sue if the reference is expressed as a personal opinion or given without admission of liability. The employee also has some protection in relation to an incorrect or inaccurate reference, under the laws of defamation and malicious falsehood. If the employer has not used reasonable skill and care in the provision of references the employee may have a cause of action in negligence. Even if the reference is accurate, yet due to an omission it gives an unfair overall impression of the employee, it can be an actionable claim by the employee. If an employer refuses to give a reference due to the employee bringing an action in the Employment Tribunal, an employer maybe found guilty of victimisation.
As a matter of policy, as an employer it is safer to limit references to confirm the length and job title of the employee.