Employers would be required to provide references for all staff under new legislation

Proposal designed to prevent businesses using ‘nasty tactics’ against victims of discrimination and harassment

New legislation could prevent employers from withholding references for former employees, in a move designed to protect individuals who have faced discrimination or harassment from being intimidated.

The government proposal, announced by business secretary Andrea Leadsom (pictured), would mean that for the first time employers would be obliged to provide at least a basic reference for any former employee. It forms 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.

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,” she said.

The proposal was welcomed by Hephzi Pemberton, founder and CEO of diversity and inclusion consultancy Equality Group. “It is excellent to see the government actively taking steps to remove this discrimination, and it is incumbent on all leaders in the public and private sectors to do the same," she said.

Sophie Walker, chief executive of Young Women’s Trust, welcomed the proposal as a way of protecting employees who speak out about harassment. “Too often, employers threaten to withhold references to coerce young women to stay silent about sexual harassment and other forms of ill-treatment they have faced in the workplace,” she said.

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“Research for Young Women’s Trust has found that two years on from the #MeToo movement, one in four young women say they would be reluctant to report sexual harassment at work for fear of losing their job. 

“That’s why we welcome the government’s plans to consult on proposals to require employers to provide at least a basic reference for former employees, and call upon all employers to ensure that workplaces are safe and secure for all young women.”

But Joeli Brearley, founder of campaign group Pregnant Then Screwed, said measures to ensure basic references would do little to alleviate the problem of pregnancy and maternity discrimination. “Thousands of women every year are bullied and harassed for having kids and then forced to shut their mouths with NDAs, often at times when they are at their most vulnerable," said Brearley. 

“This extension to ensure a 'basic' reference won't change this. What employees need to realise is that they can ask for a good reference as part of their settlement.

“The focus from the government needs to be on uncovering the bad behaviour currently at play.” 

Paul Holcroft, associate director at Croner, also expressed concerns about the proposed changes. He said forcing employers to provide a reference was “only likely to increase the current fear” among businesses that former employees could bring legal action over a reference they consider unfair or misleading.

“Employers are already cautious when it comes to writing references for former employees, and because of this tend to confirm only the role that the individual was employed in and the start and end date of employment without giving any details on their performance,” Holcroft said.

A lack of guidance on what would and would not be acceptable to include could result in references that state “just the briefest facts and give a prospective employer no useful information on their applicant”, he added.

The latest proposals came in response to a report on the misuse of NDAs published in June by the parliamentary Women and Equalities Committee.

The report, the result of a longstanding enquiry, found that employers gain “significant bargaining power from their ability to choose whether to provide a reference”, and that “secrecy about allegations of unlawful discrimination is being traded for things that employers should be providing as a matter of course, such as references and remedial action to tackle discrimination”. 

It recommended that the government legislate to force employers to provide at least a basic reference for any former employee, confirming the dates of their employment. 

The proposal is part of a range of plans announced by the government to cut down on discrimination in the workplace.

Other proposals, unveiled in July, include legislation allowing employees who have been asked to sign NDAs to disclose protected information to the police, healthcare professionals and lawyers, and a requirement that workers asked to sign NDAs have access to independent legal advice.

Updated 1 November 2019: Due to purdah rules following the announcement of a general election scheduled for 12 December, the government has said it is unable to confirm when consultation over this latest proposal is likely to open, and when any subsequent legislative changes are likely to come into force.