In a cutthroat job market, any advantage that an applicant can muster will go a long way to ensure that they stay ahead of the competition. Therefore, an eye catching CV that draws the attention of the potential employer is a good start and also having good references in place who will speak glowingly of an applicant will also be vital. Sensible people will put down a referee who’ll speak highly of them, allowing the applicant to put their best foot forward. While for others...their references may not work in their favour. Therefore, what happens if a referee gives a person a less than stellar endorsement of their professional performance? Is a person allowed to do so? Well, the answer to that question is rather complex, but please keep on reading anyway.
Does an employer have to provide a reference if you ask for one?
Before exploring the legalities in regards to employment references, we should perhaps begin with the more basic question, on whether or not an employer must provide an employee with a reference if one is requested. And the answer? Well, no, there is no general duty for an employer to provide an employee with a reference.
That was the simple bit in regards to this area of law.
Is a referee allowed to give a negative employment reference?
Now, the question in regards to whether or not it’s against the law for an employer to provide a bad reference, is the more important inquiry and the answer is quite fascinating.
First, if an employer who agrees to be a reference provides information to a prospective employer that is defamatory, then the employer may be exposed to potential liability.
Although, the uniform Defamation Acts, may provide an employer some defence in terms of qualified privilege, which can protect the employer in the event that the information provided, or the impression given, is substantially true. Furthermore, it should also be noted, that this defence is available if the information was also considered as reasonable under the circumstances.
In determining ‘reasonableness’, the courts will look into a number of the surrounding facts of the situation, when making a decision on whether or not a negative reference by an employer is defamatory. However, if an employee can prove that the employer provided a negative reference maliciously, then the defence is generally no longer available to the employer.
On the other hand, it is however important to also be mindful of the fact that an action of defamation can be restrictive, and not every adverse statement – even if the statement was false – can be considered defamatory.