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Obligation to provide a reference - new proposal to protect employees against intimidation

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Business Secretary, Andrea Leadsom, has announced a government proposal, which would mean that employers will, in the future, have to provide former employees with a basic reference at the very minimum.

This follows a parliamentary inquiry into the use of non-disclosure agreements (NDAs) in discrimination cases and a report in June by the parliamentary Women and Equalities Committee.

There are fears that some employers have used the threat of withholding references in order to silence victims of harassment or discrimination and possible future legislation would prevent this and protect victims from intimidation.

The government reassures business that a fair balance will be struck between the interests of employers and workers and that the proposal is aimed at the small minority that use nasty tactics to pressure employees into silence.

Will this work?

The proposal has met with mixed reactions. It was welcomed by the diversity and inclusion consultancy 'Equality Group' and also by the ‘Young Women’s Trust’.

However, other groups have suggested that the obligation to provide a basic reference will not prevent the victims of harassment from being forced into silence by the use of NDAs.

Employers also expressed concern that legislation on basic references would increase the fear that former employees could bring legal action over a reference that they considered unfair or misleading. This could lead to the standard being to provide only the most basic facts giving no useful information to the prospective employer on their applicant.

What is next?

The report recommended that the government legislate on the provision of at least a basic reference for a former employee, confirming the dates of their employment.

The proposal announced by the government is part of a range of plans unveiled in July to cut down on workplace discrimination. They include proposed legislation allowing employees who have signed NDAs to disclose protected information to some agencies and a requirement for those asked to sign to have access to independent legal advice.

There is likely to be consultation on all these proposals but no date has yet been announced for when this will open. Nor has any schedule for the subsequent legislative changes coming into force been confirmed.

If you require advice regarding an employment dispute, and would like more information, you can speak to a member of our team on 0175 321 6399.

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