"You can only legally give dates and job title" is not true
It is the most widely repeated statement about references in British working life, and there is no statute behind it. Not the Employment Rights Act, not the Equality Act, not data protection law.It is a policy, and a sensible one for a large employer: it takes the decision away from four hundred line managers and makes it once, centrally, the same way every time. Repeated for twenty years it has hardened into something people believe is law.
What is true is narrower and more useful: you do not have to give a reference at all, and if you do give one, it has to be true, accurate and fair, and it must not mislead overall. Everything below is what those words have been held to mean.
No duty to give one, and a duty to two people once you do
There is no general legal obligation to provide a reference, to the ex employee or to the new employer. The exceptions are a contract term requiring one, and regulated sectors where the regulator requires it, most obviously FCA regulated roles. Refusing is lawful. Refusing selectively is where it gets dangerous, because giving references for everyone except one person invites the obvious inference.
Once you write one, you owe a duty of care in two directions at once, which is what makes references awkward:
- To the person it is about. Spring v Guardian Assurance [1995] 2 AC 296. Writing something damaging you have not checked is actionable in negligence, and the ex employee does not have to prove defamation to bring it.
- To the employer relying on it. Ordinary negligent misstatement. A reference that creates a false impression can be actionable by the person who hired on the strength of it.
So both instincts are wrong on their own. Writing everything you suspect injures one side. Writing a warm letter that quietly omits what mattered injures the other.
Bartholomew is cited backwards almost every time
Bartholomew v London Borough of Hackney [1999] IRLR 246 is the case people reach for when they want to justify saying nothing. It does the opposite. The employer disclosed that the employee had left while disciplinary proceedings were outstanding, and the Court of Appeal held that the reference was not unfair. The reasoning is the valuable part: a reference must not give a misleading impression overall, and omitting the live proceedings from an otherwise positive reference could itself have breached the duty owed to the recipient.
The rule that comes out of it is that a reference must be true, accurate and fair, but it does not have to be full and comprehensive. You can be selective. You cannot be selective in a way that misleads.
And you cannot allege what you never investigated
Cox v Sun Alliance Life [2001] IRLR 448 sets the other boundary. An employer must not state or imply misconduct in a reference unless it has carried out a reasonable investigation and has reasonable grounds to believe it. Suspicion is not grounds. A resignation that happened to arrive during an investigation is not a finding. If it was never tested and never put to the person, it does not go in the letter, and it does not go into the informal phone call afterwards either, where most of the real damage in this area is actually done.
The absence question, which nearly everybody answers wrongly
Reference request forms routinely ask for a sickness absence record, and referees routinely fill the box in. Section 60 of the Equality Act 2010 says a prospective employer must not ask about the health of the applicant before offering work. Read the wording: it prohibits asking about the health of the applicant, not asking the applicant. Sending the question to you instead of to the candidate does not get round it.
Two consequences, and both are commonly stated the wrong way round:
- The candidate cannot sue over the question. Section 60(2) makes a contravention enforceable only by the Equality and Human Rights Commission. Anyone telling a job applicant to sue because they were asked about health is wrong.
- But the question moves the burden of proof. Section 60(5) provides that if the employer acts on the answer and a disability discrimination claim is brought, the particulars of that complaint count as facts from which a tribunal could decide the provision was contravened. The employer starts the case already needing to explain itself.
Which gives the referee a clean answer. Before an offer, say you will confirm employment details and will deal with absence once an offer has been made. After an offer, section 60 no longer applies and what remains is a data protection question: give the number of days and the number of occasions if you hold them, and never the reasons behind them.
Why the two-line reference is not as safe as it feels
A bare confirmation of dates and job title is very hard to sue over, because it barely says anything. It is also read by every experienced recruiter as a quiet warning, because they see full references every week and know what the absence of one means. That is the trap in the received wisdom: the minimal reference is legally cautious and practically loud.
The fix costs one sentence. Say that it is your policy to confirm dates and job title only, and that no comment favourable or unfavourable is intended or implied. Now the silence is explained by the policy rather than by the person, and the recipient has nothing to read into it. This tool puts that sentence in automatically whenever you choose the minimal option, and tells you when your other answers contradict it.
Common questions
Can I legally only give dates and job title?
No. There is no statute anywhere restricting a reference to dates and job title, and this is probably the most widely believed untrue thing about employment references in Britain. It is a policy, adopted by large employers so that the decision is taken away from individual managers and made once centrally, and it has been repeated often enough that most people assume a law is behind it. You are free to write a full reference, a factual one, or nothing at all. What you are not free to do is write something untrue, unfair or misleading.
Do I have to give a reference at all?
There is no general legal duty to provide one, either to the ex employee or to the prospective employer. The exceptions are a contract term requiring it, and regulated sectors where the regulator does, most obviously FCA regulated roles under the Senior Managers and Certification Regime. Outside those, declining is lawful. Decline consistently rather than only for particular people: refusing a reference for one person while giving them to everyone else can itself be discrimination or victimisation.
Can I be sued for what I write in a reference?
Yes, and by either side. Spring v Guardian Assurance [1995] 2 AC 296 established that a referee owes a duty of care to the subject of the reference, so writing something damaging that you have not checked is actionable in negligence without the ex employee having to clear the much higher bar of defamation. Separately, the recipient who relies on the reference can sue for negligent misstatement if it misled them. Both directions are real, which is why a reference has to be accurate rather than merely kind.
Does a reference have to mention everything?
No. In Bartholomew v London Borough of Hackney [1999] IRLR 246 the Court of Appeal held that a reference must be true, accurate and fair, and must not give a misleading impression overall, but that it does not have to be full and comprehensive. That case is usually cited the wrong way round. The employer there disclosed that the employee had left with disciplinary proceedings outstanding, and the court found that was not unfair, because leaving it out could itself have misled the recipient. Bartholomew is authority for disclosing, not for staying quiet.
Can I mention a disciplinary matter that was never concluded?
You can state the fact that proceedings were outstanding and unresolved, which is true, and stop there. What you cannot do is state or imply a finding that was never made. Cox v Sun Alliance Life [2001] IRLR 448 requires a reasonable investigation and reasonable grounds for belief before an employer alleges misconduct in a reference. Suspicion is not grounds, and an allegation that was never put to the person and never tested ends up being read out in a tribunal.
They have asked me for a sickness absence record. Should I give it?
Not before a job offer has been made. Section 60(1) of the Equality Act 2010 stops a prospective employer asking about the health of an applicant before offering work. It says asking about the health of the applicant, not asking the applicant, so putting the question to the referee instead does not avoid it. The applicant cannot bring a claim over the question itself, because section 60(2) makes a contravention enforceable only by the Equality and Human Rights Commission. Section 60(5) is what makes it matter: if the employer acts on the answer and a disability discrimination claim follows, the particulars of that complaint are treated as facts from which a tribunal could decide the provision was contravened, so the burden of proof has shifted before the employer has said a word.
Is a bare reference actually safer?
Legally it is difficult to attack, because it says almost nothing. In practice it is not neutral. Recruiters read hundreds of references and know exactly what a full one looks like, so a two-line reference for a good employee is read as a quiet warning. If your organisation has a fixed policy, say in the letter that the policy is to confirm dates and job title only and that no comment favourable or unfavourable is intended. That single sentence is what stops the silence being read as a verdict, and it costs nothing.
Can I say I would not re-employ them?
You can, and it is quoted constantly in reference disputes. It is a short sentence carrying a conclusion that the rest of the letter usually has not supported, and it is read as shorthand for misconduct whatever you meant by it. If there is a documented, investigated reason then the reason belongs in the letter where it can be judged on its merits. If there is not, the line is doing damage your evidence cannot back up.