Can an Employer Refuse to Provide a Reference?

There is no legal obligation to provide an employee with a reference, however, employers should be aware that a decision to refuse a reference does not come without consequences. Where an individual brings a claim to the WRC under the Unfair Dismissals Act 1977, and the WRC finds the dismissal was unfair, the WRC then looks to calculate the employee’s losses to determine the appropriate level of compensation up to the maximum statutory cap of two years’ remuneration. The Complainant has a duty to mitigate their loss by seeking alternative employment. In this context, an employer’s decision not to provide a reference has the potential to lead to a higher award before the WRC.

In Graziano D'amato v. TripAdmit Ltd., ADJ-00047459 (October 2024), the Complainant was dismissed without notice. The Respondent employer in evidence confirmed they do not provide written references but are happy to supply verbal references. The Complainant had applied for 37 jobs and was unsuccessful and he attributed his inability to secure new employment to the employer’s failure to provide a written reference. The WRC found that the employer’s failure to provide the Complainant with a reference without any justification, contributed to the Complainant’s loss of earnings. The Complainant was awarded €42,000 for the unfair dismissal. The WRC did not confirm what portion of the award was due to the failure to provide a written reference.

In Shulammite Awotundun v. Brendan Vacations Ireland, Ltd., ADJ-00059093 (May 2026), the WRC found the Complainant's redundancy was not genuine and amounted to unfair dismissal. In assessing financial loss, the Adjudication Officer held that “the Respondent’s handling of a post-dismissal reference request was a causative factor in the termination of the Complainant’s subsequent employment”. The Complainant had secured a new role and provided two referees from the Respondent. When the new employer contacted the referees with a questionnaire, neither completed it. The Director of Operations instead issued a statement of service by email. The Adjudication Officer confirmed he took no issue with the Respondent limiting its reference to a statement of service, noting this was an entirely legitimate and long-established policy within the Respondent. However, the Adjudication Officer criticised the Respondent’s failure to communicate that policy clearly and in a timely manner to the new employer, and found it “striking and particularly disappointing” that when the Complainant raised the adverse impact of the delayed and deficient handling of the reference process, the Respondent neither acknowledged responsibility nor made any effort to mitigate the impact. The Respondent’s conduct effectively prevented the Complainant from exiting the loss position created by the dismissal. This was a factor considered by the WRC in deciding the appropriate level of compensation was €40,789, however, again, we do not know how much compensation was attributed to the reference issue.

What Should an Employer Include in a Reference?

Employers ought to be careful when preparing a reference as the content of a reference can expose the Company to liability. In the first instance, employers ought to be conscious not to include false statements about the individual as this could expose the Company to a potential defamation action.

Employers also ought to be careful not to discriminate against the individual in what they set out in the reference. In the WRC decision of Employee v. Personnel Manager, ADJ-00024794 (August 2021), the Complainant was an employee who received an unsatisfactory employment reference from her line manager when she was seeking promotion. The Complainant suffered from anxiety, which she disclosed to her line manager. Her line manager provided a reference which rated her as unsatisfactory across several competency areas, including time management, leadership, and reaction to a busy environment.  The reference explicitly noted that on one occasion she had failed to attend an important meeting because “she experienced anxiety and had to return home”. The Complainant was informed by HR that her reference was not satisfactory. The Complainant obtained a copy of the reference via a Data Subject Access Request. The WRC held that by making direct references to the Complainant’s anxiety, the Respondent discriminated against the Complainant on the disability ground, and this impacted her ability to acquire new employment. The Complainant was awarded 6 months’ salary by way of compensation which is by no means insignificant.

Employers may receive a request for an “off the record” discussion with a new employer regarding a former employee. Employers ought to be aware that there is no such thing as an “off the record” discussion and anything they disclose, they should be prepared for the employee to hear it and engage accordingly.

Type of Reference

Many employers are now opting to provide a factual statement of employment as opposed to a traditional reference. A statement of employment includes, for example:

•    The individual’s job title  
•    The dates of employment (commencement date and end date) 
•    The duties/responsibilities of the role held

As outlined in the Shulammite Awotundun v. Brendan Vacations Ireland, Ltd., decision discussed above, there is no issue in adopting a policy to provide factual statements of employment only. The Adjudication Officer confirmed “[m]any employers adopt such an approach for the sake of consistency, and it is entirely legitimate to do so.” It is important to note though, as confirmed by this decision, that if a new employer asks for a reference in a specific format and an employer is not prepared to provide a reference in the requested format (e.g. a questionnaire), they should explain that their Company policy is to provide a certain form of reference.

Commentary

Recent WRC decisions confirm that while there is no legal obligation on an employer to provide a reference, the manner in which a reference request is handled can have significant legal and financial consequences. Employers should adopt a clear and consistent policy on the provision of references. Care must be taken to ensure that the content of any reference is accurate and does not contain statements which could expose the employer to a claim. Where an employer elects to limit its references to a statement of employment, it should be prepared to explain that position to any prospective employer who requests a more detailed reference. Employers should also be mindful that a failure to provide a reference can be taken into account by the WRC when assessing the appropriate award in a successful unfair dismissal action.