What are my rights if I have been given an incorrect job reference?


If you feel that your employer has given you a bad reference, it is, in the first instance, advisable to retrieve a copy from them or the recipient of the reference to find out what has been said. If either party refuses to provide you with this, you can make a subject access request to the recipient under the Data Protection Act (you may need to pay a fee of around £10 to do this). Upon obtaining a copy of your reference and depending on the circumstances of your case, you are likely to have several options.

If it is confirmed that your reference is untrue, in the first instance, it may be worth speaking to your previous employer to find out if he would be willing to reach some form of agreement as to what will be said in future references. Some employers will take pity on employees who are finding it difficult to find work as a result of a negative reference and others will want to avoid the nuisance of defending a negligence claim. You may also consider speaking directly with any prospective employers to explain your reference situation.

Negligence

A failure to ensure that the information given is accurate could lead to liability for negligence if you suffer economic loss or damage as a result.  You may be able to bring a claim in the County Court for negligent misstatement. To do so, you must show that the information in the reference is false or misleading, has had or is likely to have a detrimental impact on your future employment prospects (has caused loss) and that your former employer had failed to take reasonable care in the preparation of the reference.

Discrimination and Victimisation

If the reason for your poor reference is because you fall under one of the ‘protected characteristics’ in the Equality Act 2010 (for example race, sex, disability, sexual orientation etc), your employer might be acting unfairly and you could have a claim for discrimination in the Employment Tribunal. This would also apply in cases where you have supported someone else’s claim against your employer under the Equality Act.

Defamation

An untrue statement that disparages the reputation of a person in the estimation of right thinking members of society may amount to defamation. A defence to a claim for defamation is that the communication took place on an occasion of “qualified privilege”, which means that the person making it has a legal, social or moral duty or interest to make it and the person to whom it is made has a corresponding duty or interest to receive it. That privilege is lost if the communication is made with malice. This does not mean only that it is made spitefully but that the maker knows or has reason to believe the statement is untrue or is recklessly indifferent as to its truth.

Accordingly an employer cannot be successfully sued for defamation for the contents of a reference (even if its contents are untrue) provided it believed that the information in the reference was correct and the reference was provided without malice. Referees must therefore be able to justify and support any comments made in a reference and show that they honestly believe that the contents of a reference are true. This claim would be brought in the civil courts.

Malicious Falsehood

To succeed in a claim of this type, you would need to show that the reference provided contained information that was not true and, as above, the statement was made maliciously (knew or was reckless as to the truth). Breach of contract There may be an express clause in your contract relating to your employer giving you a reference. If there is, and you believe that there has been a breach of this clause, you may wish to consider bringing a claim in the Employment Tribunal.

For further advice and a free consultation, please get in contact on 020 7100 5256 and ask to speak to Philip Landau or any member of the employment team, or email us.

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