Providing references is an important part of the recruitment process, helping employers make informed hiring decisions. But what happens when a former employee's performance was poor or their employment ended under difficult circumstances? Can an employer give a bad reference?
The simple answer is yes, employers can provide a negative reference, but only if the information is truthful, fair and supported by evidence.
Can employers give a bad reference?
If a former employee underperformed, was dismissed for misconduct, or experienced documented performance issues, employers are entitled to reflect this in a reference.
However, any comments provided must be:
- Accurate.
- Fair.
- Based on factual information.
- Supported by evidence if necessary.
Personal opinions, assumptions or biased statements should never form part of a reference.
Is it illegal to give a bad reference?
No. A negative reference is not automatically unlawful.
However, employers have a duty of care when providing references. Problems can arise if information is:
- Inaccurate.
- Misleading.
- Unsubstantiated.
- Discriminatory.
- Presented without relevant context.
A reference that does not fairly represent an individual's employment history could expose an organisation to legal risk.
What about employees who left under difficult circumstances?
Additional caution may be needed if an individual left following:
- A dispute.
- A grievance.
- Disciplinary proceedings.
- A settlement agreement.
Settlement agreements may include clauses that restrict what employers can say in references. HR or legal advice should be sought where appropriate.
Best practice for writing references
Many organisations choose to provide a standard factual reference, confirming:
- Job title.
- Dates of employment.
- Reason for leaving.
This approach reduces risk while still meeting reference requests. If it is your organisation’s policy to provide a reference in a certain style, like providing a ‘certificate of employment’ and a brief review, then you should inform that it is policy for you to provide it in this way.
For employers who choose to provide more detailed references, best practice includes:
- Use professional and objective language – Avoid emotional or subjective wording. Keep comments factual, balanced and proportionate.
- Avoid protected characteristic information – References should not include information relating to protected characteristics or anything that could be considered discriminatory.
- Respect confidentiality – Only share information that is relevant to the purpose of the reference and that the organisation is permitted to disclose. Avoid including personal or sensitive information that is not necessary for assessing suitability for a role.
- Follow your organisation's reference policy –If your organisation has a reference policy, ensure it is followed consistently. Where there is uncertainty, particularly in complex cases involving grievances, disciplinary action or settlement agreements, seek guidance from HR or legal advisors before responding.
Why accurate references matter
References help maintain trust within the recruitment process.
Providing honest, evidence-based information supports informed hiring decisions while protecting both the organisation and the individual involved.
A well-written reference should provide a fair reflection of a person's employment history, allowing prospective employers to make decisions based on accurate information rather than personal opinion.
Key takeaways for employers
When providing references, employers have a responsibility to ensure any information shared is fair, accurate and supported by evidence.
Employers can provide a negative reference, but only where the information is truthful, fair, accurate and supported by evidence. When in doubt, many organisations choose to provide a factual reference that confirms basic employment details, helping reduce risk while maintaining professionalism and compliance. You should seek advice from HR or legal if you are unsure about what information may be provided in certain circumstances.
