A bad reference can cost you a job — but it can also expose your employer to legal liability if it is inaccurate or given with malicious intent.
What Employers Can and Cannot Include
| Permissible in a reference | Problematic |
|---|---|
| Dates of employment | False statements about conduct |
| Job title and role | Misleading impressions by omission |
| Factually accurate statement of dismissal | Statements given out of malice |
| General assessment of performance (if genuinely held) | Exaggerated criticisms not supported by evidence |
| Reason for leaving (if accurate) | Disclosing protected health information without consent |
The Qualified Privilege Defence
References are covered by ‘qualified privilege’ — meaning the author is protected from defamation claims provided they:
- Genuinely believed what they wrote
- Did not act with malice
- Were communicating to someone with a proper interest (a prospective employer)
If the reference was given out of spite or to harm you (malice), qualified privilege is lost.
Agreed References in Settlement Agreements
If you left employment under a settlement agreement, always negotiate an agreed reference as part of the deal:
- Agree the exact wording to be used
- Ensure the agreement specifies who will respond to future reference requests and what they will say
- Request that the reference be confirmed in writing to you so you have a copy
Getting a Copy of Your Reference
Submit a Subject Access Request (SAR) to your former employer under UK GDPR:
- Free of charge
- Employer must respond within 1 month
- The reference exemption (for confidential references) applies but is often overridden when the reference has caused you identifiable harm
Challenging an Inaccurate Reference
If you believe a reference contains false information that cost you a job offer:
- Request the reference — if your prospective employer received a written reference, you may be able to request a copy under UK GDPR (Subject Access Request to either your old or new employer)
- Compare to facts — if the reference contains factual inaccuracies, write to your former employer pointing out the errors and requesting a corrected version
- Seek legal advice — a reference that contains false, malicious information causing you financial loss (lost job offer) may give rise to a claim for negligent misstatement or malicious falsehood
Former employers are not required to give a reference, and in many regulated sectors (e.g. finance, healthcare), they may be required to disclose certain information (such as regulatory findings) even if they would prefer not to. The safest approach for employers is typically a brief factual reference covering dates and job title only — it limits their exposure while fulfilling basic obligations.