Employment law – Job references
Does your employer have to give you a reference?
If you want to leave your job you’ll probably want a reference. It is good practice for your employer to provide a reference, but they are not legally obliged to do so -except in some regulated industries like financial services.
Assuming you do get a reference, what will be in it?
Almost 75% of references these days are factual- namely your name, dates of employment, and job title. Sometimes, the reason for dismissal is included.
As factual references are so common, it is unlikely that any negative inference by your new employers will be drawn from its limited nature.
You can always ask your ex- employer for a fuller reference, and in some circumstances, you may be able to obtain a separate reference form the individual line manager that you worked with.
If your employer does give you a reference, they are under a legal duty to make sure they are accurate and not misleading to your future employer. This means that if, for example, you were subject to disciplinary action from your old employer, this could form part of the reference.
Can my employer give me a bad reference?
Yes, as long as they genuinely consider it to be true and accurate and have reasonable grounds for that belief.
What are my rights if my employer gives an incorrect job reference?
Can I see a copy of my reference?
Once you start working for a new employer, you can ask them for a copy of any reference that they have been given from your previous employers. This is called a Subject Access Request and is a right that you have under the data protection laws, but your old employers are not obliged to provide a copy- only your new ones. You usually need to pay a fee of £10 for such a request.
What are the practical pitfalls I need to be aware of?
If you have had long periods of absences due to illness, you will not want this reflected on your reference, so it is best to find out what your employer’s policy is on the provision of references, and ensure that sickness records are not included.
You also need to make sure that your employer is setting out your correct job title in the reference. There have been many instances where this is not accurately reflected, especially where you have been promoted over the years or changes roles.
You may also not be happy for the reason of your termination of employment to be stated on the reference- for example if you were made redundant, as a result of performance issues or because of ill-health. It is best for this to be addressed before or at the time of your departure and where a direct relationship still exists between you and your employer enabling the reference to be modified.
Finally, you need to make sure you are aware of who your new employer needs to apply to for your reference. This is usually the HR department, but not every company has one and it is always better to be prepared and have an individual name to pass on if necessary.
FCA Regulated References
What is a regulatory reference?
Authorised firms need to conduct appropriate due diligence on candidates, including acquiring references from the candidates previous employer(s), as part of the firm’s assessment of a candidate’s fitness and propriety. Of particular relevance are references from other authorised firms, known as “regulatory references”.The FCA would generally expect firms to acquire regulatory references to cover the past five years, however this will be dependent on the candidate’s regulatory history.
What information should your former employer provide?
The former employer should provide information relating to, but not limited to:
- any outstanding liabilities of that the candidate from commission payments;
- any relevant outstanding or upheld complaint against the candidate from an eligible complainant;
- any information relating to the fitness and propriety of the candidate (section 5 of the application for approval-Long Form A); and
- the main assessment criteria of the Fit and Proper Test (FIT 2). This includes “whether the person is or has been the subject of any proceedings of a disciplinary or criminal nature, or has been notified of any potential proceedings or of any investigation which might lead to those proceedings”.
How does the FCA assesses fitness and propriety?
The FCA must be satisfied that the individual:
- will be open and honest in his dealings and is able to comply with the requirements imposed on him (honesty, integrity and reputation);
- has the necessary skills to carry on the function he is to perform (competency and capability); and
- is financially sound (financial soundness).
Further information on fitness and propriety can be found here: