I am an agency worker and left my old job last month so I could have a couple of weeks off before starting a new job. I asked my former line manager for a reference for my new job three times before she supplied one to the agency. However, having seen the reference, I don’t think it is particularly fair or accurate. I didn’t have any major problems in my last job and don’t want it to affect my new role. Can I ask my former line manager for another reference or are they not obliged to help? A former colleague says I’m lucky as her reference from her last agency job just confirmed that she had worked there. I didn’t think this was legal, but what are my rights around this?
BASW’s Advice and Representation Service has received a lot of calls around references lately, particularly from agency social workers. What we recommend in situations like this, particularly for agency staff who will be changing jobs more frequently, is to always ask for a reference before you leave any employment. It is good practice for a manager to share the reference with you before you leave your job if you have requested one. This gives you the opportunity to deal with any issues while you are still employed by this organisation, which is far easier in terms of logistics and getting hold of people than after you’ve left.
A manager should not be writing anything about you in the reference that they have not already shared with you prior to leaving their employment. If you receive a reference and you are unsure about something that has been written, you are entitled to ask the author for clarification. An employer may choose to give a reference that just confirms your dates of employment. There is nothing unlawful in this, although there is room for investigation if your employer normally gives full references.
Many agency workers are only contracted to give one weeks notice. You should always check your contract and be aware of your entitlements to notice and pay before you start. Notwithstanding this, however, we would always recommend you sort out the issue of a reference before you leave that employment. If this is not possible, and you have left your job without seeing a reference, first check with your agency that a copy of a reference has not been sent to them directly. If it hasn’t then contact your former manager by phone or email and ask for a copy of a reference that they will be sending, or have sent, to your new employer.
Once you receive a copy, if you are not happy with the contents then you can go back to the author. Be as clear as you can about what you are unhappy about. Do not use sweeping statements such as ‘It’s unfair’ – try and select which part of the reference is not fair and explain why not – always use any evidence to back up your case. Be realistic about the impact this will have on future employment and explain this to the author. You can try negotiating with the author to see if they will edit the reference. However, the author is under no obligation to make any changes unless they have said something that is factually incorrect; for example, if they have said you do not have a qualification, when you do and have a certificate to prove this fact. The A&R Service can assist in this process.
References are about opinion and unless a reference contains blatant untruths or libellous or discriminatory comments, there is little chance of legal recourse. However, if a reference you have been given isn’t accurate or is deliberately misleading it may amount to defamation, in which case you could claim for libel. You would need to speak to a lawyer about how to do this. As an agency worker your agency has a duty of care towards you and should support you in obtaining and if necessary challenging the content of a reference.
BASW would not provide legal representation for a member who wanted to sue a former employer over a disputed reference as this is a civil matter, therefore outside the A&R remit and would need to be funded by the member through their own solicitor.
Remember that a reference is merely a passport to your next job. If your reference is adequate for this, but you think it insufficiently positive, our advice would be to accept it as it is and move on.
The law around references is quite vague but here are further sources of information which may help with specific queries.
• Total Jobs – jobs and careers advice website (www.totaljobs.com)
• Direct Gov – public services website (www.direct.gov.uk/en/Employment/index.htm)
• Acas – promoting employment relations (www.acas.org.uk)
• The Information Commissioner (www.ico.gov.uk)
• The Children’s Workforce Development Council (www.cwdcouncil.org.uk)