Could references be made compulsory?

13 December 2019

The Government has recently proposed that in future employers might have a statutory obligation to provide at least a basic reference for any former employee. This comes in response to suggestions that some employees have been pressured into signing non-disclosure agreements after being threatened with references being withheld (see our previous article about non-disclosure agreements here).

Should the statutory obligation be brought into force, then employers would be required to provide a basic reference which would usually consist of the dates of employment (start date and finish date) and the role or roles held.

Whether such a basic reference would particularly assist the former employee or the prospective employer is debatable. It is in fact what the vast majority of employers provide at the moment anyway. Some former employees would want a more detailed reference commenting on matters such as their attendance record, sickness record and performance where they feel that they are likely to be spoken about positively. However, employers can sometimes be wary of giving fuller references because they worry about the risk of claims.

From a former employer’s perspective, a basic reference would at least meet their duty to the subject to take reasonable care to ensure the information it contains is fair, factual and not misleading. Our previous article about references can be found here. However, the prospective employer might feel that they want more information to assess the person’s suitability.

If and when the consultation on this proposal opens, it will be interesting to see whether consideration is given to providing some clear guidance on what can and cannot be included in a reference. Some clarity is likely to be welcomed by employers who are often understandably concerned as to the consequences of providing a reference which could form the basis of legal proceedings against them for being unfair, misleading or discriminatory.

For the present time, a cautious approach to the giving of references is likely to be maintained by many employers. We would always suggest obtaining legal advice on the giving of references if you have questions over how they should be drafted and what they should include. An agreed reference is often something that is included within a Settlement Agreement, and we can help with this.