Does an employer have to give a good reference for an employee? There is a common misconception that a current or former employee is entitled to a ‘good’ reference or, more accurately, that an employer cannot make any negative comments about an employee. This is simply wrong.
School Staffing (England) Regulations 2009
In the education sector a useful starting point is the School Staffing (England) Regulations 2009 (SI 2009/2680) which states that where a candidate applies for employment at an academy or maintained school in England then the governors of the previous school must, if asked, advise in writing whether the candidate has been the subject of capability proceedings within the last two years and, if so, give written details of how the concerns arose, for how long they lasted and the outcome of any proceedings.
Staffing and employment guidance for schools – September 2025
In addition, the DfE non-statutory guidance on ‘Staffing and employment guidance for schools, which was updated in September 2025, says that a governing body should take up references from the candidate’s current or former employer, and should ask for details of any capability procedures in the previous two years, and the reasons for these.
Keeping children safe in education 2025
The DfE statutory guidance Keeping children safe in education 2025 (paragraph 227) states that schools and colleges should:-
- not accept open references e.g. to whom it may concern;
- not rely on applicants to obtain their reference;
- ensure any references are from the candidate’s current employer and have been completed by a senior person with appropriate authority (if the referee is school or college based, the reference should be confirmed by the headteacher/principal as accurate in respect of any disciplinary investigations);
- obtain verification of the individual’s most recent relevant period of employment where the applicant is not currently employed;
- secure a reference from the relevant employer from the last time the applicant worked with children (if not currently working with children), if the applicant has never worked with children, then ensure a reference from their current employer;
- always verify any information with the person who provided the reference;
- ensure electronic references originate from a legitimate source;
- contact referees to clarify content where information is vague or insufficient information is provided;
- compare the information on the application form with that in the reference and take up any discrepancies with the candidate;
- establish the reason for the candidate leaving their current or most recent post;
- ensure any concerns are resolved satisfactorily before appointment is confirmed.
Legal obligations from caselaw
The legal duties on employers in relation to references have been considered by the courts in a number of cases over the years.
The Court of Appeal in Bartholomew v London Borough of Hackney [1999] IRLR 246 decided that the employer was not in breach of its duty of care to the employee when it provided a reference containing details of disciplinary proceedings which were pending when the employee accepted voluntary severance terms. It ruled that an employer is under a duty of care to provide a reference that is true, accurate and fair and does not present facts so as to give a misleading impression overall. If the employer had not included details of the disciplinary proceedings it would have failed in its duty to the prospective employer to provide a reference that was not unfair or misleading.
In Cox v Sun Alliance Life Ltd [2001] IRLR 448, the Court of Appeal held that an employer would be negligent in providing a reference that alluded to an employee’s misconduct unless the employer had carried out an investigation and had reasonable grounds for believing that the misconduct had taken place.
Where a reference is provided by a current employer, a failure to follow these rules can amount to a breach of contract justifying a resignation and forming the basis of a claim for unfair constructive dismissal. In TSB Bank plc v Harris [2000] IRLR 157 the Court held that there was such a breach when, in a reference, the bank mentioned complaints made against the employee which she had either not known about, or had not had the opportunity to comment on. The failure to consult the employee about the complaints before including them in the reference contributed to the breach of the implied term, as did the failure to include details of mitigating circumstances surrounding the complaints. This had resulted in a misleading impression being created, which was liable to damage the employee’s future prospects.
Handling Sickness and Absence Information
Employers may be asked to confirm absence data, but must do so with caution:
- You may provide factual absence figures (e.g., total days or occasions) only if relevant and proportionate.
- Do not include medical details, diagnoses, or causes of absence.
- Exclude absences related to disability, pregnancy, or parental leave.
- Health information is special category data under the UK GDPR – you must identify a lawful basis and ensure disclosure is necessary and proportionate.
- In most cases, absence data should be omitted unless there is a clear business or safeguarding justification.
Further considerations
It can be useful to try and agree the terms of a reference if there are concerns. A former employer should do all they can to assist a former employee in obtaining future employment, not least of all because future earnings will be taken into account when calculating loss in any employment tribunal claim. The quicker a former employee obtains employment the better as far as the previous employer is concerned.
