• International Workplace
  • 5 November 2019

Employers may be legally required to provide references

Employers could be stopped from withholding references to any employee under new proposals announced by Business Secretary, Andrea Leadsom. This would mean that employers could, for the first time, be required to provide at least a basic reference for any former employee.

Business Secretary, Andrea Leadsom, said:

“I am determined to make the UK the best place to work and grow a business – including levelling the playing field between employees and employers. The overwhelming majority of businesses comply with the law, treating their employees with respect and fairness.

“But we cannot tolerate the small minority that use nasty tactics like non-disclosure agreements and withholding references to pressure employees into silence, often in cases of serious wrongdoing. These proposals ensure individuals are protected, striking a fair balance between the interests of employers and workers.”

These proposals form part of the government’s response to an inquiry on non-disclosure agreements conducted by the Women and Equalities Select Committee (WESC).

Many of the recommendations made by the Committee were addressed in a raft of proposals announced in July to crack down on misuse of non-disclosure agreements, including legislation ensuring that confidentiality clauses cannot prevent individuals disclosing to the police, regulated health and care professionals or legal professionals.

Other recently proposed legislation includes:

  • Ensuring employers make clear the limitations of a confidentiality clause, in plain English, within a settlement agreement and in a written statement for an employee, so individuals signing them fully understand what they are signing and their rights.
  • Extending current legislation so that individuals signing NDAs will get independent legal advice on the limitations of a confidentiality clause – including making clear that information can still be disclosed to police, regulated health and care professionals, or legal professionals regardless of an NDA.
  • Introducing new enforcement measures to deal with confidentiality clauses that do not comply with legal requirements – for example, an NDA in a settlement agreement that does not follow new legislative requirements will be legally void.

The Government announced an initial crackdown on NDAs on 21 July 2019 – including proposals to:

  • legislate so that no provision in a non-disclosure agreement can prevent disclosures to the police, regulated health and care professionals and legal professionals;
  • legislate so that limitations in non-disclosure agreements are clearly set out in employment contracts and settlement agreements;
  • produce guidance for solicitors and legal professionals responsible for drafting settlement agreements;
  • legislate to enhance the independent legal advice received by individuals signing non-disclosure agreements; and
  • introduce enforcement measures for non-disclosure agreements that do not comply with legal requirements in written statements of employment particulars and settlement agreements.

Currently, an employer does not have to give a reference by law unless it is in the employee’s contract that they will do so. If an employer does give a reference it must be accurate and fair. The employer giving the reference can decide how much they include.

A ‘basic reference’ details simply the employee’s job title and the dates they worked there, whilst a ‘detailed reference’ can include answers to questions from the employer requesting the reference, including:

  • details about the employee’s skills, ability and experience;
  • details about their character, strengths and weaknesses relating to their suitability for the new role;
  • how often they were off work;
  • disciplinary details; and
  • the reason they left the job.

References must not be misleading or include irrelevant personal information. All details about the person, their role or performance must be fair and accurate. If opinions are provided, there should be evidence to support the opinion.