Can I take legal action over a misleading reference?

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Many employers are afraid to give a negative reference for fear of being sued but what about when the tables are turned? Could HR take legal action against a company because they gave a misleadingly positive account of your terrible new recruit?

“I’ve never seen a situation like that before,” says leading employment lawyer Trevor Thomas. “I think it would be a good idea to have something like that but I’ve never seen an employer sue a former employer based on a reference,” he admits.

Vancouver-based Thomas told HRM that it would be difficult to prove that the former employer had deliberately misled the new employer.

“The other thing is that the new employer has a duty to properly vet this employee so at the end of the day I think a court would say to the new employer; ‘You had a candidate before you who was looking for this job, you should have done your due diligence to properly vet this person. Not just from a reference standpoint but from speaking to this person, looking at their credentials, their skills and experience, you should have known what you were getting into, you can’t go back now and blame the former employer for your failure to properly vet this person.’”

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  • Alex Bell on 2016-06-23 12:12:41 PM

    Does this mean that references are ultimately meaningless if one can lie about an employee and make them appear far better than s/he is or be so afraid of saying any thing negative that the feedback is meaningless anyway. Are employers afraid of giving a truthful reference even if it is mostly negative?

  • John Dawson on 2016-07-13 11:58:59 AM

    An interesting question Nicola and one that opens a real can of worms around the issue of what you can and what you can’t actually do and say when it comes to employee references – and, crucially, where the responsibility lies for ensuring their accuracy and honesty.

    The long and short of it is that you can say whatever you want about an employee as long as it’s factual and, if necessary, you can back up your statement with the requisite evidence. So, subjective comments like “James was useless” are not really sufficient but, on the other hand, objective and factual information like “his attendance was poor and I have the records to support that” are fine. And, of course, you can decline to give a reference at all but what does that demonstrate about both the employee and the employer?

    At Xref, we’re in the business of facilitating fast and effective candidate references for many leading blue chips here in Canada and around the world. In our experience, it’s the excellent point made by Trevor Thomas in the original post where he anticipates that the Courts would probably decide that it’s ultimately the responsibility of the new employer to ensure proper due diligence over new hires and their reference that is key here. In fact, I would go so far as to say that, in this day and age, it could be argued that it almost amounts to negligence when employers don’t sufficiently check candidate references – especially when potential problems like this can be avoided at the click of a button for a few dollars per head.

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