Reference Obligations – Employee Intimidation

New Proposal for Employee References
The Business Secretary, Andrea Leadsom, has announced that employers in the future will have to provide a basic reference for ex-employees. This follows a report by the parliamentary Women and Equalities Committee and would mean that the start and end dates of any previous employment would have to be confirmed by an employer in a reference for an employee.

This rule is aimed at employers that may use the threat of withholding a reference to intimidate employees who have been victims of harassment and discrimination by their former or current employer.

This is a proposal for new legislation, but what worker rights does the current law provide in relation to references for employees?

Current Employer Obligations to Provide References
There is no statutory obligation imposed on your new employer to have to request a reference from an ex-employer. However, it is common practice to request at least one previous reference and make any offer of work dependent on that reference being satisfactory. As long as this reference forms part of any new contract of employment your employer may terminate your employment due to an unsatisfactory reference. This is true even after you have started work for the organisation. It is entirely within the employer’s discretion as to whether any new reference is satisfactory.

The law also states that previous employers do not have to provide a reference even if you ask for one. However, an employer’s policy on whether or not to provide references must still be consistent. They should also avoid being discriminatory in any refusal to provide a reference and not refuse on the grounds of a protected characteristic such as age, disability, pregnancy, race, religion or sex.

The Effects of Victimisation
A refusal to provide a reference may also fall under the category of victimisation. This will be the case if an ex-employee has previously brought discrimination proceedings against an ex-employer or taken part in any such proceedings and the employer refuses to provide a reference for future employers based on this.

The Quality of Any Reference that is Provided
As a general duty of care a referee, as your previous employer or manager, must ensure that any information which is provided in a reference is true, accurate and fair and does not give a misleading impression. However, the reference itself does not have to contain great amounts of detail and can simply be a basic reference.

A previous employer can be sued for ‘negligent misstatement’ if they provide an inaccurate reference. The test for this is an objective one and is whether a reasonably prudent employer would have expressed the opinions that were stated in a particular reference. Previous employers should give accurate statements about you and not leave out anything important that reflects well on your time with them.

The issue of references is one that we get asked about and have a lot of experience in helping clients with. If you are having problems with references, please call us for an informal chat and we will see how we can help.

Our phone number is: 0330 221 0684