References and what you can legally say in the United Kingdom
Reviewed by Mellow Editorial Team, HR & payroll content team
Employers can say more in a reference than many assume — but what you write must be accurate, fair and not misleading. You are not legally obliged to provide a reference (with a few exceptions), but if you do, you owe a duty of care to both the former employee and the prospective employer.
Are you required to give a reference?
In most cases, no. For the majority of roles there is no legal duty to provide one. You can decline, or limit your response to a basic factual confirmation.
There are exceptions. Regulated financial services firms must provide a reference when the FCA or PRA rules require it. Some care and education roles carry similar obligations. Outside those sectors, a blanket policy of "no references" or "factual only" is a legitimate business choice.
Whatever your policy, apply it consistently. Refusing a reference for one employee while providing detailed ones for others from the same team could expose you to a discrimination or whistleblowing detriment claim if the reason for the refusal is connected to a protected characteristic or a protected disclosure.
What can you legally say?
You can include:
- Dates of employment and job title — straightforward factual content.
- Reason for leaving — if accurate and you can evidence it.
- Performance and conduct — provided what you write is true, can be substantiated, and represents a fair overall picture.
- Disciplinary history — this is not automatically off limits. If an employee was dismissed for gross misconduct, you can say so, as long as it is accurate and not selective in a way that misleads.
- Sickness absence — handle carefully. Persistent absence linked to a disability is sensitive. Consider taking HR or legal advice before including health-related information.
The legal framework sits in negligence (the duty of care established in Spring v Guardian Assurance [1994]) and, where personal data is involved, the UK GDPR. A reference that is inaccurate and causes the subject financial loss can give rise to a claim. A reference that omits a known, serious safeguarding concern — where the prospective employer reasonably relies on your silence — can also create liability.
The "honest but fair" standard
Courts and tribunals do not expect glowing references. They expect honest ones. The clearest test is: would a fair-minded employer, looking at the full picture of this person's employment, consider what you have written to be accurate and representative?
A reference that is technically true but carefully worded to lead the reader to a false conclusion can still be unlawful. If you describe someone's attendance as "occasionally inconsistent" when they were dismissed for persistent unauthorised absence, you may be misleading the recipient while appearing factual.
Equally, omitting known concerns about safeguarding or financial misconduct when you know the role is in a trust-sensitive environment carries risk. You do not have to volunteer everything, but deliberate omission of something material to the role can constitute negligent misstatement.
Does the subject have a right to see their reference?
Under UK GDPR, a reference you hold on file about a current employee is disclosable to them on a subject access request. A confidential reference you send to a prospective employer is generally not disclosable to the subject by the sender, though the recipient organisation may be required to disclose it (subject to balancing the referee's reasonable expectation of confidentiality).
In practice, courts have allowed redaction of a referee's identity in some cases, but the substantive content is harder to withhold if it is held as personal data. Write every reference as if the subject could read it — because they may.
Practical steps for a consistent, defensible approach
Document your policy. Decide whether you will provide detailed or factual-only references, who in your business is authorised to write them, and in what format. Put this in writing.
Keep contemporaneous records. If you may one day need to justify what you wrote — or declined to write — you need the performance reviews, disciplinary notes and investigation records to back it up. References are only as defensible as the documentation behind them.
Separate opinion from fact. "John met all his targets in 2024/25" is verifiable. "John is an excellent communicator" is opinion. Both can appear in a reference, but distinguish them — and do not state opinion as if it were fact.
Flag sensitive categories before drafting. If the reference touches on health, disability, pregnancy or a protected act (such as raising a grievance), pause before writing. The content may be accurate and still expose you to a discrimination claim if the decision to include it was influenced by those factors.
Verbal references carry the same risks. A telephone conversation is not protected simply because nothing was put in writing. The same duty of care applies.
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