In the ‘top ten’ of HR questions asked, it would be fair to say the question “do I need to give a reference for my employee (ex-employee)?” is regularly in there.

As it stands, the answer to this question is often no, though it does depend on Company policy and whether the employee/ex-employee has committed an act of gross misconduct. Therefore, an employer may simply state they are “not willing” to give a reference or they may simply ignore the request. Such behaviour can put the employee in a difficult position if the new job offer is subject to the receipt of suitable references.

This new Government proposal means employers would be obliged to provide at least a basic reference for former employees. The new proposal is a part of the Government’s response to a parliamentary inquiry into the use of non-disclosure agreements (NDAs) in discrimination cases and comes amid fears some businesses have scared victims of harassment into silence by threatening to withhold their references.

Business secretary, Andrea Leadsom, said the proposals would “ensure individuals are protected, striking a fair balance between the interests of employers and workers.

“We cannot tolerate the small minority of employers that use nasty tactics like non-disclosure agreements and withholding references to pressure employees into silence, often in cases of serious wrongdoing.”

So, is this likely to work? Well, a basic reference is just that; it is a reference confirming that the employee did work from X to Y and the role they undertook. It would provide no further information on things such as behaviour, conduct or capability to do any role and would certainly not address the broad areas contained within a ‘reference request’ type of form, including “would you re-employ this individual”.

It is much more common (certainly in SME’s) for the reference policy to be “we only give neutral or basic references” so this will make no difference to such businesses.

There is certainly some concern that this new legislation will increase the current fear amongst some businesses that former employees could bring legal action over a reference that they consider to be unfair or misleading. The argument here seems to be that such legislation will raise the profile of references and thus give those looking to make a claim more impetus to do so. However, there is a simple solution here; do what the law says – give a basic reference and a basic reference only.

If you have any concerns about this contact our HR and Employment Law specialist, David Boland, to discuss our free HR health check or our HR support packages on the details below.

David Boland
Managing Director
Direct Dial: 01942 292520
Mobile: 07786 376714
Email: david.boland@jshrsupport.co.uk