Job reference rights

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Rights and conditions
02 November 2016
You have no statutory right to a reference from a present or past employer - references are given at the discretion of the employer. References do not have to be given in writing - they can be given verbally, perhaps by telephone.

A strong, supportive reference is crucial. Normally a job is offered subject to the provision of satisfactory references. A weak or bland reference could result in the job offer being withdrawn. With this in mind, think long term and try to keep relations between you and your potential referee on a positive footing.

Who will provide the reference?

Normally your headteacher (or line manager in a college) will provide the reference. In doing so he or she may ask the opinions of your line manager and colleagues to help inform the reference. Prospective employers may be suspicious if your current headteacher/line manager is not one of your referees.

Is the referee obliged to give me a 'good' reference?

A reference should express the referee's honest, balanced view of your professional capabilities. It should detail both your strengths and any perceived areas for improvement. The employer may take the view that it is under an obligation to refer to any outstanding disciplinary warnings or issues relating to performance.

It is imperative that a referee discloses any concerns that may have risen regarding an individual's suitability to work with children. This includes any sanction or warning that may have been issued in the past - even if it has expired.

Occasionally, the referee may provide a short, factual reference that merely confirms your post and length of service. Whilst this does not say anything bad about you, it certainly does you no favours.

Challenging a bad reference

Employers are not obliged to provide references for their staff and, if they do, they have always been given wide discretion to give the prospective employer a candid (and confidential) picture.

Courts have traditionally protected this 'freedom of expression' on the basis of public policy: employers must be able to describe staff to each other without fear of redress. Employees learning of misleading and damaging references on them were virtually powerless, unless they could clearly demonstrate that the employer had made knowingly false statements deliberately to harm them.

However, a legal case known as Spring v Guardian Assurance established significant new rights for employees. Employers now have a new duty to their staff to take reasonable care to ensure that references are accurate and fair.

This may discourage those who feel they cannot give a supportive reference from giving one at all since employees still have no legal right to references. For those who suspect that their failure in job applications is due to adverse comments from an employer, there are now more helpful prospects of redress.

Disclosure of information

References are confidential and, unless they are held on computer record (in which case the Data Protection Act may help), you do not have the right to demand a copy of a reference about yourself.

Furthermore, in view of the long history of employers' wide discretion in writing references, judges may still be reluctant to award compensation unless a reference is both seriously inaccurate and genuinely damaging.

Relevant ATL publication