Employment References: What UK Employers Can and Cannot Say

Employment references are one of those areas where UK employers often get it wrong in both directions. Some say too much and expose themselves to legal claims. Others say too little, or refuse to engage entirely, and create problems for the departing employee and the new employer alike.

This employer reference guide covers what UK law actually requires, what you can and cannot say, how to protect your business, and how to handle tricky situations like bad performance or ongoing disciplinary issues.

Last updated: April 2026

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Employer Reference Guide UK: Your Core Legal Position

Here is the starting point that surprises many employers: there is no general legal obligation for a UK employer to provide a reference. You can refuse entirely.

There are important exceptions:

• Regulated sectors. If you operate in financial services regulated by the FCA or PRA, you have a regulatory obligation to provide references for certain roles. This is a requirement under the Senior Managers and Certification Regime (SM&CR).
• Contractual obligations. If the employment contract or a settlement agreement includes a clause requiring you to provide a reference, you must honour it.
• Discrimination risk. If you provide references for some employees but not others, and the pattern aligns with a protected characteristic (race, sex, disability, etc.), you could face a discrimination claim.

For most employers outside regulated sectors, the decision to provide a reference is voluntary. But once you choose to give one, the law imposes clear duties on what that reference must look like.

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What Happens When You Choose to Provide a Reference

Once you decide to give a reference, whether written or verbal, two key legal principles apply:

1. The Reference Must Be True and Accurate

Under the common law duty of care established in Spring v Guardian Assurance (1995), an employer providing a reference owes a duty to the former employee to ensure the reference is:

• True in the facts it states
• Accurate in the overall impression it creates
• Fair and not misleading by omission

This last point is critical. A reference can be factually correct in every individual statement but still be misleading because of what it leaves out. If you mention a disciplinary warning without noting that the employee was subsequently cleared, or you describe poor performance in one quarter without acknowledging strong performance overall, the reference could be considered negligent.

2. The Reference Must Not Be Malicious

If a reference is deliberately false or given with malicious intent, the former employee can bring a claim for malicious falsehood. This is rare, but the threshold is lower than many employers assume.

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Can an Employer Give a Bad Reference in the UK?

This is one of the most common questions employers ask, and the answer is yes, but with significant caveats.

You can give a negative reference if:

• The negative information is factually true
• It is accurate in overall impression (not cherry-picked to look worse than reality)
• You can evidence the statements you make (documented performance reviews, disciplinary records, etc.)
• You are acting in good faith, not out of personal animosity

You cannot give a bad reference if:

• The negative statements are false or exaggerated
• The reference is designed to punish the employee for bringing a grievance, whistleblowing, or asserting a statutory right
• It creates a misleading impression through selective disclosure
• You have no documentary evidence to support the claims

Practical tip: If an employee had genuine performance problems, the safest approach is to confirm dates of employment and job title only. You are not required to volunteer negative information. The risk of a negligent misstatement claim almost always outweighs any benefit of providing a detailed negative reference.

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What to Include in an Employment Reference UK

If you do provide a substantive reference (beyond the basic "confirm dates and title" approach), here is what to cover and what to avoid.

Safe to Include

• Dates of employment (start and end)
• Job title and role description
• Reason for leaving (if straightforward, such as resignation or redundancy)
• Attendance record (if factual and documented)
• Performance summary (if supported by documented appraisals)
• Specific skills or achievements (if you can evidence them)

Avoid or Handle With Care

• Disciplinary matters where the process is ongoing or was overturned
• Sickness absence details, which could engage disability discrimination risks under the Equality Act 2010
• Subjective opinions that are not backed by documented evidence
• Personal characteristics unrelated to work performance
• Spent criminal convictions under the Rehabilitation of Offenders Act 1974

The "Factual Reference Only" Approach

Many UK employers have adopted a policy of providing only factual references: dates, job title, and sometimes salary. This is legally safe and widely accepted. It is the approach we recommend for most SMEs.

If your standard policy is factual references only, document that policy and apply it consistently. Inconsistency is where legal risk creeps in.

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Reference Request Employer Obligations UK: The Full Picture

Even without a statutory duty to provide references, employers have several obligations once they engage with the process.

Duty of Care to the Former Employee

As established in Spring v Guardian Assurance, you owe reasonable care to the subject of the reference. A negligent reference that costs them a job offer can lead to a damages claim against you.

Duty of Care to the Requesting Employer

You also owe a duty of care to the employer requesting the reference. If you provide false positive information (claiming an employee was excellent when they were dismissed for misconduct, for example) and the new employer suffers a loss as a result, they could pursue a claim against you.

This creates a dual liability risk. You can be liable for being too negative AND for being too positive. The safest ground is always documented facts.

Data Protection Obligations

Under UK GDPR, a reference contains personal data. This means:

• The employee has a right of access to any reference you hold about them (received from a previous employer). Note: there is a limited exemption for references you have given, but this only applies to subject access requests made to you about references you wrote, not references you received.
• You must have a lawful basis for processing the information in the reference (legitimate interests is the most common basis).
• References should be proportionate and not contain excessive personal data.

Record Keeping

Keep copies of all references you provide for at least six years (the limitation period for most civil claims). Store them securely and in compliance with your data retention policy.

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Handling Difficult Reference Scenarios

The Employee Left Under a Cloud

If an employee resigned during a disciplinary process or left after a series of performance warnings, you are not obligated to disclose this. The safest option is a factual reference confirming dates and title only, with no additional commentary.

If pushed for more detail by the requesting employer, you can decline: "It is our policy to provide factual references only."

Settlement Agreements and Agreed References

When an employee leaves under a settlement agreement, the agreement almost always includes an agreed reference. This reference is typically annexed to the agreement as a schedule, and both parties sign off on the exact wording.

If you have an agreed reference in place, you must provide that reference and that reference only. Deviating from the agreed wording, even verbally, could breach the settlement agreement.

The Verbal Reference Trap

Some managers, especially line managers, give informal verbal references over the phone without realising the legal implications. A verbal reference carries the same legal weight as a written one.

Action point: Make it company policy that all reference requests go through HR or a designated person. Individual managers should not provide references without authorisation. This is one of the most common sources of reference-related legal claims.

Requests About Right to Work

A new employer may ask you to confirm a former employee's right to work status. You are under no obligation to share this information, and doing so could create data protection and discrimination risks. The new employer is responsible for conducting their own right to work checks.

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Building a Defensible Reference Policy

Every UK employer should have a written reference policy. It does not need to be complicated. Here is what it should cover:

1. Who can give references. Restrict this to HR or a named individual. No freelancing by line managers.
2. What type of reference you provide. Factual only (dates, title, salary) is the safest default.
3. How requests are processed. Written requests only, with a standard response template.
4. Settlement agreement references. A process for flagging and providing agreed references.
5. Record keeping. All references given are filed and retained for six years.
6. Training. Managers know the policy exists and know not to provide informal references.

Your reference policy should sit alongside your broader employment policies. Not sure your contracts and policies are up to date?

Review your employment policies and contracts with the EmployerKit Audit. From £49. Visit employerkit.com/tools/employerkit-audit.

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How This Connects to Your Employment Contracts

Your employment contracts should include a clause on references. This typically states:

• The company will provide a factual reference only upon request
• All reference requests must be directed to a named contact or HR
• The employee consents to the company providing the reference in the agreed format

This clause sets expectations from day one and reduces the risk of disputes when the employee leaves.

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Frequently Asked Questions

Q: Is an employer legally required to give a reference in the UK?

A: No. There is no general legal obligation for UK employers to provide a reference. The main exceptions are in regulated financial services (where the FCA/PRA requires it under SM&CR), where the employment contract requires it, or where a settlement agreement includes an agreed reference. Outside these situations, you can decline to provide one entirely.

Q: Can an employer give a bad reference in the UK?

A: Yes, but it must be factually true, supported by documented evidence, and accurate in overall impression. You cannot cherry-pick negative facts to create a misleading picture, and you cannot give a bad reference as retaliation for whistleblowing or asserting a statutory right. If in doubt, provide dates and job title only.

Q: What should I do if a former employee claims my reference was unfair?

A: Review the reference against your documented records. If the statements are factually accurate and the overall impression is fair, you have a strong defence. If the reference contains subjective opinions or unsupported claims, you may have exposure. This is why the factual-only approach is safest, and why you should always keep copies of the references you provide along with supporting documentation.

Q: Can an employee see the reference I wrote about them?

A: Under UK GDPR, an employee has the right to access personal data held about them, including references received from previous employers. However, there is a limited exemption for confidential employment references you have given (as opposed to received). In practice, references are often disclosed during tribunal proceedings or subject access requests to the receiving employer, so assume anything you write may eventually be seen by the employee.

Q: Should our reference policy be the same for all employees?

A: Yes. Consistency is your best protection against discrimination claims. If you provide detailed references for some employees and factual-only references for others, you need a clear, documented, non-discriminatory reason for the difference. The simplest approach is a universal policy: factual references for everyone, with settlement agreement references as the only exception.

Q: Can I refuse to provide a reference if the employee was dismissed for gross misconduct?

A: Yes. You can refuse to provide a reference in any situation (outside the regulated sector exceptions). In fact, refusing is often the safest option after a dismissal for gross misconduct. If you do choose to provide one, stick to factual information: dates of employment, job title, and that the employment ended by dismissal. Do not elaborate on the reasons unless you have robust documentation and legal advice.