New legislation could require organisations to provide a basic reference for all former employees.
The UK government has confirmed their intention to consult on forcing organisations to comply with requests to provide a basic reference to former staff.
Coming as part of their response to recommendations made by the Women and Equalities Select Committee regarding the misuse of non-disclosure agreements at work, the government accepted that the threat of withholding a reference could work to silence victims of sex or other forms of discrimination.
Business secretary Andrea Leadsom announced that the proposals would ‘ensure individuals are protected, striking a fair balance between the interests of employers and workers’.
Although there was no detail on what information would be required in a mandatory reference would, suggestions for basic references have included confirmation of an individual’s employment, as well as their start and finish date.
If anything, this proposed change could help to clarify the existing legal position around employee references as this can often be a source of confusion. In the meantime, organisations should keep in mind that there is currently no statutory requirement for them to provide a reference for a former employee, unless this is a contractual obligation or they operate in certain regulated sectors.
However, it is relatively unusual for an organisation to refuse requests to provide a reference and doing so to punish an employee for involvement in harassment claims, or whistleblowing, will be unlawful. Any inconsistency in giving references is also likely to increase the chances of employees feeling that they have been discriminated against.
Those who agree to provide a reference also have a duty of care to ensure the information given is accurate and fair. Organisations can be sued for defamation, or malicious falsehood, for providing unfavourable statements which are untrue, if the person giving the reference either knew it was untrue or was recklessly indifferent as to whether it was true.
As a result, it is becoming more and more common for employers to have a policy only to provide bare references, giving dates of employment, position held and sometimes salary. For assistance in writing a reference of this kind, please see our template letter for providing a reference to a former employee.
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