3. Starting work and the employment contract


Most employers require a reference before they will employ someone. Young workers starting work are likely to have references from school or college, plus exam results, but from then on, job offers will generally depend on employer references. 





An employer is not obliged to provide any reference at all but if they do, they have a legal duty to make sure it is true, accurate, fair and not misleading. If it is not accurate because they have not taken proper care, the worker can bring a negligence claim in the civil courts for any resulting financial loss (Spring v Guardian Assurance [1994] IRLR 460).
Employers are also liable for negligence if they volunteer unsolicited information about an ex-employee without taking proper care (McKie v Swindon College [2011] EWHC 469). It is unlikely to be fair and reasonable for a reference to include information about complaints that were not brought to an employee’s attention (TSB Bank v Harris [2000] IRLR 157). Where the person has already left before concerns become apparent, an employer can normally refer to those concerns in a reference as long as they act reasonably, making it clear that they were not raised with the employee or formally investigated (Jackson v Liverpool City Council [2011] EWCA Civ 1068). 





A reference need not be comprehensive (Kidd v Axa Equity [2000] IRLR 301). Nor is there a legal obligation to provide a good reference, as long as it is true, accurate, fair and not misleading (Legal and General v Kirk [2001] EWCA Civ 1803).





Although employers are generally not obliged to provide a reference, they will break the law if they refuse because of a discrimination complaint. This is victimisation and a breach of the Equality Act 2010 (EA 10) (see Chapter 7). In Jones v 3M Healthcare EAT/0714/00, disabled workers who were denied, or given poor references by their ex-employer because they had brought discrimination claims were unlawfully victimised. In Pnaiser v NHS England and Coventry CC [2015] UKEAT/0137/15/LA, a decision to withdraw a job offer after hearing from a referee about periods of disability-related sickness absence was disability discrimination.


A refusal to provide a reference, or giving a poor reference because a worker has made a protected disclosure (whistleblowing), will be a breach of the Public Interest Disclosure Act 1998 (see Chapter 13: Whistleblowing). 





If a job offer is made subject to a satisfactory reference, the contract will not take effect until it is provided. Sometimes individuals start work before the reference arrives. Where this happens, the employer can lawfully end the employment contract if the reference does not materialise or is unsatisfactory. 





It is up to an employer to decide if a reference is satisfactory. The test is subjective (Wishart v NACAB [1990] IRLR 393) but the employer must not discriminate or victimise someone, for example, because of trade union activities or because they have made a protected disclosure (BP Plc v Elstone [2010] UKEAT/0141/09/3103). 





Blacklisting workers during the recruitment process because of their membership of a trade union is unlawful (see Chapter 5: Blacklisting).





There is nothing to stop an employer asking for references from people other than those the employee has nominated (Purvis v Luminar Leisure Ltd t/a Chicago Rock Cafe EAT/1332/99). 





An unsatisfactory reference must be the real reason for ending or withholding the employment, not some other reason, such as the fact that the employee has asked for equal pay (see Halai v Integrated Asian Advice Service UKEAT/0855/03).





Often the first hurdle where a poor reference is suspected is to get hold of a copy. A reference includes 'personal data', protected by the EU General Data Protection Regulation (GDPR) and the Data Protection Act 2018 (DPA 18) (see Chapter 15).

Normally, an individual has the right under the GDPR to access the personal information an organisation holds about them, and you might expect this to include information contained in a confidential employment reference. However, this is no longer the case, as a result of a change in the law contained in Schedule 2 of the DPA 18. There is now a blanket exemption that allows employers to refuse to give the reference subject a copy of any employment reference that was provided in confidence.

Under the old Data Protection Act 1998 (which the DPA 18 replaced) this exemption was available only to the giver of the reference, meaning that it used to be possible to ask for a copy of the reference from the reference recipient (the organisation relying on the reference to decide whether or not to give the applicant a job). With this change to the law, the exemption now covers all requests for employment references given in confidence, whether directed to the writer or the recipient. An organisation can choose whether to reveal the reference, as long as it was given in confidence.

The ICO’s guidance under the old regime used to be that it is good practice to hand over a reference, or at least a substantial part of it, especially if it has had a negative impact on the person concerned, for example stopping them taking up a provisional job offer, unless it discloses genuinely confidential information about a third party without their consent. Even if the third party refuses consent, it should still be possible to provide an accurate summary of the content. This ICO guidance has been withdrawn but it remains the fairest and most common sense approach for a reasonable employer to take. Even so, this change in the law has tipped the scales in favour of HR managers who prefer to respond to any request with a blanket refusal.

If the reference subject suspects that the reference may discriminate against or victimise them because of a protected characteristic under the Equality Act 2010, they can ask structured questions about the reason why the job was not offered, including questions about the reference content. There is guidance explaining how to do this on the Acas website: Asking and responding to questions of discrimination in the workplace and there is more information in Chapter 7: Discrimination.

The GDPR, in force since 25 May 2018, also provides a new right to data portability, in other words, to be given personal data in a structured, commonly used and machine-readable form, and to be able to transmit it to another data controller without hindrance. In future, this new right might be relevant on a change of employer (see Chapter 15: Data Protection).