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Employers are often asked to provide references for an employee, but at times it can land you in legal trouble. It is important to be aware of the associate risks when writing a reference and knowing what you should and should not mention.

As an employer, manager, or supervisor, it is likely that at some point you will be approached to provide an employment reference about a current or former employee.

Many businesses have a ‘no written reference’ policy, instead only providing a statement of employment if requested by a departing employee. Giving a reference in such circumstances is a personal statement from you as the employee’s supervisor or another relevant person. You can choose whether you wish to provide a personal reference for the employee.

A word of caution

If you choose to provide a personal reference, or more commonly these days to be a referee, there are a few things you need to be aware of.

Providing information that relates directly to the employment relationship between an employer and employee is not a breach of national privacy laws. Information that directly relates to the employment relationship can include things such as the employee’s skills, performance, conduct, and their terms of employment.

Individual’s consent

When providing employment references, you need to carefully consider whether to disclose personal information about an employee without their consent.

If an individual applying for a job has asked you as a former employer to act as a referee, you can assume that you have the individual’s implied consent to disclose relevant information about them when contacted for a reference. However, in situations where you haven’t been asked by the individual and you are contacted for a reference, it is good practice to seek the consent of the individual before disclosing information about them.

Be aware!

If you have been asked by the individual to be a referee, or you have the individual’s consent in the event of being contacted, you need to carefully consider what information is appropriate to provide in a reference. For example, you generally wouldn’t disclose personal information about an employee’s medical history.

However, intentionally providing inaccurate information about the individual or withholding critical information about them could land you in trouble with a claim for misrepresentation from the new employer with the potential to seek compensation for damages. The individual could also bring an action if the information provided by you in a reference was defamatory or invaded their privacy.

Need More?

NatRoad’s advisors have substantial experience in all areas of human resource management.

For more information and advice about providing references, contact a NatRoad advisor on (02) 965 3000 or [email protected]

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