Supplying referees at the bottom of your CV for prospective employers to contact before offering you a job is common practice. But a series of legal cases challenging what employers can and cannot say regarding a past employee have made many employers reluctant to provide references. Concerns about potential liability have reached such an extent that many employers have a policy not to provide references at all, or if they do so, only to provide basic facts about the employment, refusing to comment on the employee’s level of performance and other more subjective issues.

Your former employer is under no legal obligation to provide a reference, unless there was an express contractual obligation to do so. Furthermore, if one is given, there is no obligation for it to be full, fair and comprehensive. Anyone providing a reference has a duty to take reasonable care not to give misleading information about the employee. This means they should avoid being unfairly selective in the information they provide or including facts or opinions in such a manner that would create a false or mistaken inference in the mind of the prospective employer. Where an employee has performed to an unacceptably low level or has been dismissed for a reason that would cast doubt on his or her suitability to be hired by a new employer, the employer will be faced with three options:

– to provide no reference at all

– to provide only a factual reference, giving the dates of employment and the job title only

– to give a fair assessment, including a reference to the bad issues as well as the good, using reasonable care not to give misleading information

The failure by an employer to provide a reference in cases where a discrimination claim might have been alleged could give rise to a victimisation claim, where the employee could show that references were commonly or routinely given. Otherwise, it would be difficult for an employee to complain about a reference not being given. If you believe your past employer’s refusal to provide a reference is victimisation or that the reference provided harmed your future work prospects then the responsibility is on you to establish:

– that the information provided in the reference is misleading

– providing such misleading information is likely to have a material effect on the mind of a reasonable recipient of the reference to the detriment of the employee

– the employer was negligent in providing such a reference