The legal risks of giving a bad reference

The legal risks of giving a bad reference

The legal risks of giving a bad reference HR professionals are growing increasingly uneasy about giving bad references to former workers – but can a departed employee actually launch a lawsuit if they disagree with your judgement?

“If the reference is untrue then yes, it’s potentially opening the door up for a defamation suit,” warns leading employment lawyer Trevor Thomas.

While employers are normally protected by privilege – which means they are entitled to speak freely about a former employee – Thomas says that privilege may fall if they step out of line.

“That means if they give a purposely untrue reference or if the reference is misleading, hurtful or wrong in any way which can’t be justified based on the employee’s actual performance,” he clarifies.

Thomas, of Kent Employment Law, says employers should carefully consider what evidence they have before offering a negative reference.
“If you’re going to say something negative about an employee then you want to make sure you have a good reason why and you want to make sure it’s backed up in writing,” he stresses.

“This is a big part of being an employer – documenting things and making sure that you have evidence before you take action,” he told HRM. “You always want to make sure do everything you do is well documented.”

Vancouver-based Thomas says if an employee did decide to sue based on a reference they thought was unfair, employers would be legally obligated to share hard evidence to back up their opinion.

“If an employee feels like a reference was defamatory in any sense and the employee decided to sue the employer, throughout the course of the litigation, the employer would have to produce certain evidence to demonstrate why they gave that reference,” he revealed.

While the risks might sound high for employers, Thomas says there’s a simple rule that should adequately guide HR professionals.

“Really, this goes to the employer that’s acting as a reference to be honest,” he stressed. “If you’re not honest, and if there’s any sort of malice behind why you’re not honest, then you’re potentially opening yourself up to a defamation issue.”

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  • Keith Berkshire 2016-06-20 9:47:51 AM
    My rule of thumb is: "Even if it's true, does it serve any good by repeating it". On the other side of the equation, I've had this response from a request for reference: "Our lawyers have told us not to comment". I think when in doubt, better to err on the side of common sense.
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  • Barry Fisher 2016-06-21 5:42:05 PM
    This unwarranted fear by employers of being sued over a reference letter results in many employers refusing to give out reference letters while at the same time insisting on checking multiple references before hiring. someone. There should be an industry practice that unless you are prepared to give out honest references than you are not entitled to receive an honest reference.
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  • Kellie 2016-06-28 4:48:10 PM
    I think there is a bit of a concern over nothing. If you are honest, a bad reference is fine. The key is, as Thomas has pointed out; be sure it is documented and factual. If you are voicing your own negative opinions then you could potentially get into hot water. If we are all afraid to give out references, we are creating even bigger problems. Employers are always told to do their due diligence but if everyone is fearful of being honest, we are perpetuating the problem. There have never been any lawsuits in Canada that I am aware of with respect to honest references - good or bad.
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