What can I do if my employer provided a poor reference?
Whether or not we receive an offer of employment can often rely on references from previous employers. A reference allows the potential employer to see our strengths and skills prior to making the commitment of bringing us onto the payroll. However, not every reference might be complimentary and in many cases can even jeopardise the new job opportunity altogether.
A reference, by its nature, is someone else’s opinion on your performance as an employee. With this in mind, previous employers are entitled to give a poor reference if they honestly believed you were an underperforming employee. This does not give your previous employer free reign to make untrue or dishonest statements though.
In fact, if your previous employer makes untrue statements in their reference that causes you to lose your employment offer, then you may well have a claim for defamation of character, specifically, for libel if the reference was given in writing.
It would seem obvious as to what an ‘untrue statement’ is. However, in practice it is not so straightforward. Reviews are by their nature an opinion and just because you disagree with what has been said in the reference does not automatically mean it is untrue.
The responsibility will be on the previous employer to show that an honest person would have held the same opinion, having had the same knowledge they did.
Another hurdle in such a claim is the defence of ‘qualified privilege’. This applies in circumstances where the publisher has a legal, social or moral duty to make the statement and the recipient has a corresponding duty or interest to receive it. As the potential employer is relying on the reference, the previous employer will have a social and moral duty to make the statements within the reference. This defence does not apply if the statements were made with malice. This does not simply mean that the publisher disliked you. It means that the previous employer knew or had a reason to believe the statement they were making about you in the reference was untrue.
The most crucial element of any defamation of character claim is serious harm. Section 1 of the Defamation Act 2013 states that: ‘A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.’
The threshold for what constitutes serious harm has been debated by both academics and the courts since the implementation of the Defamation Act 2013. A recent decision in the Supreme Court established that in order for a claim to be successful, serious harm must be proved as a matter of fact, including by looking at the actual impact of the defamatory words.
In context of references, the claimant will need to prove that the negative reference was what caused them to lose their job offer. If the claimant interviewed poorly or failed the entry tests, then even if their reference did contain untrue statements, they may struggle to establish that they suffered serious harm as they would have likely not been offered the position anyway.
If the claimant cannot establish serious harm then they may have an alternative claim for malicious falsehood. Here, the claimant need to prove that the statement was untrue and published with malice. The claimant will have to establish that they have suffered an actual loss as a result of the untrue statements.