July 2014 | Scott FreidmanJonathan Harris

Employers should exercise caution when providing references for former employees, to avoid possible claims of misrepresentation, defamation or invasion of privacy.

You need to consider carefully what information to provide; including whether you might be providing too much or not enough information about a candidate’s skills, previous experience and their ability to do the job.

Former employers are under no legal obligation to provide a reference. Simply confirming the details of a person’s employment is perfectly acceptable.

If you are going to provide a reference, our advice is to stick to the basic facts only. Intentionally providing inaccurate information about someone or withholding critical information about an employee could lead to a claim for misrepresentation from the new employer with the potential to seek compensation for damages.

If in doubt about a particular employee, don’t provide a written reference. Many organisations now only provide a statement of employment certificate.

Some further advice for employers also asked to be a character referee:

  • Provide factual and truthful information only. If you can’t answer the questions honestly, don’t answer the questions.
  • Don’t disclose private personal information about the employee.
  • Don’t talk up the abilities of a poor performer for the sake of getting rid of them.
  • Instead of providing a character reference, you could just say: “I know her in a professional capacity and to my knowledge she did her job properly.”

Written by Jonathan Harris and Scott Freidman
(02) 9231 2466

If you have any further questions about employment issue do not hesitate to contact Scott Freidman or Jonathan Harris on (02) 9231 2466.

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