References

Overview 

References are usually sought from current and former employers.

Most employers will ask for references to be submitted in writing, either in the form of an open unstructured letter or in a standard form.

All data given in a reference should generally be based on fact or capable of independent verification. Referees should be very cautious about giving any subjective opinion (which cannot be substantiated with factual evidence) about an individual's performance, conduct or suitability.

In law there is nothing to prevent a prospective employer asking if you have ever been subject to disciplinary action or an investigation. If you would like guidance on how to approach this issue with potential employers, contact us.

You may also wish to look at the ACAS guidance 'Providing a job reference'.

In general, prospective employers are prohibited from asking questions about your health or disability prior to offering you a job. This includes questions about previous sickness absence. There are a small number of exceptions to this rule. Gov.uk has detailed guidance in this area.

Questions about sickness absence can be asked after a candidate has been offered the job (either conditionally or unconditionally) or has been placed in a pool of successful candidates. Even then the purpose of these questions should only be to clarify that a person's health or disability will not prevent them doing the job. They should enable the employer to consider whether any 'reasonable adjustments' can be made. See Equality and Human Rights Commission (EHRC) and the Equality Commission for Northern Ireland for more guidance.

There is no strict legal obligation on your employer to provide references for you as a present or past employee unless this is specified in your contract. There are exceptions to this general rule in certain regulated sectors, such as the finance industry. 

Nevertheless, such a term could be implied into a contract if:

• there is a contract of employment or services
• the work under the contract is of a type where it is normal to require a reference from a previous employer 
• the employee cannot be expected to find work of that type unless his or her employer provides a full and frank reference to a prospective employer. 

Ultimately the RCN believes that asking for a reference from a present or former employer is a reasonable request. Failure to provide a reference could mean that you cannot obtain a future position in the health care sector.

If you are having trouble getting a reference, ask if they will supply a ‘basic reference’ or ask the prospective employer if you can get a reference from someone else, for example an ex-manager or ex-colleague. 

If you are unable to get a job because you cannot obtain a reference, contact us for advice. Also consider whether you have been refused a reference because of a ‘protected characteristic’,  this may amount to discrimination. Read more about discrimination in our advice guide and in our section below. 

In line with the UK GDPR and the Data Protection Act 2018, if a reference has been given in confidence, neither the giving or receiving organisation are obliged to disclose it. 

However, if you believe you have been given a reference that is not factual, you can attempt to obtain a copy;

• contact the prospective employer and ask for the copy, if they refuse,
• contact the author of the reference. 

If you are refused a copy of the reference from both parties or if you receive a copy of the reference and it is not factual, contact us for further advice and support.

Discrimination

If you believe that a reference given about you is discriminatory you could potentially take action against the author of the reference. Please see our discrimination information and contact us.

Negligence

Employers owe their employees and ex-employees a duty to take reasonable skill and care to ensure the accuracy of a reference given about them. The duty also extends to a prospective employer who may reasonably rely on the accuracy of the reference provided.

You may have a legal claim for negligence if your employer has given a negligent statement about you that subsequently causes you loss. A reference may be negligent in law if it is unbalanced or contains statements which are untrue.

If you have lost a job following provision of a reference that you think falls under one of the above categories or is otherwise unfair, please contact us.

Defamation

If a reference contains a false or unsubstantiated statement that damages your reputation, then in theory you may be able to take legal action in defamation. However, the chances of a successful claim are remote. We will not support a defamation case.

If you have been asked to provide a reference for someone else you need to clarify whether you are being asked to provide an employment reference or a character reference. Your employer may have strict policies in place regarding who can provide employment references and failure to follow these policies could result in disciplinary action being taken against you.

In almost all cases our members experience no problems when giving character references. Character references are an important way for new employers or investigating committees to gather evidence about somebody's character.

In law no one can be compelled to supply a character reference. However, registered nurses must follow the NMC Code, which requires registrants to cooperate with all investigations and audits.

If you do decide to provide a character reference you should be open and honest. In certain circumstances, people who give dishonest references can be sued for negligence. Any dishonest reference you give could also potentially lead to disciplinary action from your employer and, if you are a registered nurse, you may be reported to the NMC for investigation.