Giving references

This guideline is to help you understand your obligations when providing references.

First, make sure you understand whether the reference you are giving is on behalf of your business, or a personal reference from you as an individual. If given on behalf of the business, then the business is responsible for what is in it. If for instance you use the business' letterhead, or use your work email account, it is likely to be treated as a business reference, if there is a dispute.

There is no statutory requirement for an employer to provide a reference for a current or past employee. However there is an expectation that employers will provide references.

 

What can go wrong?

If you give a reference, you have a duty to take reasonable care to ensure it is true, accurate and fair and that it is not misleading - a duty that is owed to both the employee and to the new employer.

So if you are providing a bad reference, ensure that you can substantiate it or you could run the risk of the employee and/or the new employer claiming damages.

 

Options

1. Give no references

Refuse, as a matter of policy, to give references for any employee. This is quite unusual. Should you choose this option ensure you give an explanation. 

2. Give bland references

Many employers provide only basic information such as - the position(s) held by the employee, salary and other benefits, sickness record and commencement and termination dates. Ensure you state that this is the business’s policy on the providing references.

3. Give full and comprehensive references

Most full and comprehensive references include the basic information, plus details concerning the employees key responsibilities, an assessment of the their performance, views on their personal qualities relevant to the positions held, e.g. honesty, integrity, drive, etc., timekeeping and reasons for leaving.

The duty to take care to be true, accurate and fair, and not to be misleading, means you should avoid:

•       Failing to respond to specific questions in a request for a reference without explaining why.

•       Omitting key information that a new employer would expect you to disclose.

•       Organising the information in a way that would give a reasonable person a wrong inference or impression of the employee.

•       Saying that an employee is suitable for the role advertised – you do not know what the job entails. If you must say this, qualify it by saying it is your opinion only.

 

Policies

Avoid inconsistency - giving a reference in one case and not another, or giving only a factual reference to one employee and a full reference to another - as this could give rise to a claim of discrimination by a disgruntled employee. It is best to establish a policy that states whether you will give references or not and, if you do, who may give them and what they should contain.