{"id":723,"date":"2024-03-13T09:56:15","date_gmt":"2024-03-13T09:56:15","guid":{"rendered":"https:\/\/sense.hr\/blog\/?p=723"},"modified":"2024-03-13T09:56:16","modified_gmt":"2024-03-13T09:56:16","slug":"can-hr-give-a-bad-reference-in-the-uk","status":"publish","type":"post","link":"https:\/\/senseworkplace.com\/blog\/can-hr-give-a-bad-reference-in-the-uk\/","title":{"rendered":"Can HR give a bad reference in the UK?"},"content":{"rendered":"\n

If you\u2019re an HR professional who has been asked to provide a reference for a bad former employee, then it might be tempting to give their potential future employer a warning. But although writing a \u201cbad reference\u201d isn\u2019t technically illegal, it is risky business \u2013 and could land you in legal hot water.<\/p>\n\n\n\n

First, let\u2019s bust that myth \u2013 giving a bad reference is not illegal<\/h2>\n\n\n\n

There\u2019s a myth that says UK employers are not allowed to give a \u201cbad\u201d reference for former employees. This is simply untrue \u2013 it is perfectly legal for you to write a negative reference, in the same way that it is perfectly legal for you to write a positive reference.<\/p>\n\n\n\n

The main guiding principle, as per the ACAS website<\/a>, is that your reference \u201cmust be accurate and fair.\u201d Outside of these parameters, it\u2019s pretty much fair game!<\/p>\n\n\n\n

What\u2019s more, is your reference does not need to be limited to the person\u2019s ability to do the job. You are perfectly entitled to give a \u201ccharacter reference\u201d, too \u2013 which might talk about the type of person they are at work, for example.<\/p>\n\n\n\n

However, before you start penning that 1,000-word essay on how much you hate Richard because of that time he stole your lunch\u2026 you may want to be aware of the risks of giving a \u201cbad reference\u201d.<\/p>\n\n\n\n

References must be accurate and fair<\/h2>\n\n\n\n

This guiding principle of a reference being \u201caccurate and fair\u201d is an important one, especially when it comes to giving a \u201cbad reference\u201d. Because suddenly, you\u2019ve got to think about what is going to be seen as accurate and fair, and what is going to be seen as your subjective opinion on a person\u2019s traits.<\/p>\n\n\n\n

For example, if I describe you as a horrible person, it\u2019s hardly hard evidence that you\u2019re actually horrible. In fact, what you\u2019re actually doing by giving your opinion on a person, is you\u2019re opening up the door for them to legally challenge your reference as being \u201cinaccurate\u201d or \u201cunfair\u201d \u2013 and where personal opinions are involved, this is a very easy argument to make.<\/p>\n\n\n\n

And even if you feel like you are stating negative information in an objective way, it\u2019s not always going to look like that where the courts are concerned. For example, when this manager mentioned in a reference how much time a former employee had had off work<\/a>, it could be argued that this information was accurate. But by failing to mention the circumstances surrounding this off-time, it was deemed as unfair \u2013 and therefore, the employee won the tribunal.<\/strong><\/p>\n\n\n\n

Don\u2019t flirt with discrimination<\/h2>\n\n\n\n

Another issue with providing a \u201cbad reference\u201d, is that it opens you up to a discrimination claim.<\/p>\n\n\n\n

If what you have said negatively about your former employee could be seen as something discriminating against one of the nine protected characteristics in UK law<\/a>, then you could be opening yourself to a world of pain. Even if you don\u2019t feel like what you\u2019re saying is discriminatory, it might not be too difficult for somebody to interpret it that way \u2013 so you\u2019re flirting with danger.<\/p>\n\n\n\n

Remember that successful claims for unfair or misleading references often end up with substantial pay-outs in court. So what is the safe option, when asked to give a reference for an employee who you don\u2019t feel deserves it?<\/p>\n\n\n\n

Keep your reference simple<\/h2>\n\n\n\n

You are not usually legally obliged to provide a reference at all. Unless, of course, you made a written agreement to do so \u2013 or if you work in a regulated industry, such as financial services.<\/a>  For this reason, some HR managers make a point of not providing references as a general rule.

But another option is to simply stick to the facts, and keep it simple. Take all personal opinion out of the subject, and confirm key points such as:<\/p>\n\n\n\n