Employment References - the do's and the don'ts

Employers have become hesitant to give proper references, for fear of legal liability. On the other hand, the unemployment rate, desperate job seekers and onerous dismissal requirements make prospective employers wary of appointments without reliable references.

In terms of civil litigation, giving an unfavourable reference might expose the employer to a potential defamation suit by the former employee, or a claim for loss of prospective gains as a result of non-employment by a prospective employer. However, a number of factors will have to be proven in order to succeed with either of these claims. Important considerations will include the reason for and content of the reference, and the relevance of the information provided.

An overly favourable but false reference that persuaded a prospective employer to appoint the employee, might be grounds to sue the former employer for damages based on negligent misrepresentation. In all instances, the rights of all the parties (protection vs infringement) will have to be weighed up on a case to case basis.

While it may therefore seem prudent for legal advisors or human resources practitioners to advise employers to either decline or say as little as possible when asked for a reference or to qualify each statement, there is also an argument to be made for providing meaningful references in order to sustain an employment reference system and not lose the value it provides.

A very good exploration of the philosophy behind giving references or not, was done by Martie Bloem, a lecturer in the Department of Private Law at the University of the Free State in Bloemfontein. She wrote a dissertation on the topic (see full document here) and an extract thereof was published in the De Rebus of 1 February 2019: "Employment references: Practical guidelines to avoid delictual liability" 

She provided some practical guidelines to employers in terms of navigating legal exposure, whilst still contributing towards establishing a well-functioning and reliable reference system in the South African employment sector:

 "It is not recommended that employers simply refuse to provide employment references to avoid the risk of liability. Employers should instead ensure that they provide meaningful, truthful and relevant references, which will make a positive contribution to establishing a well-functioning and reliable reference system in the South African employment sector.

I suggest that an employer consider the following practical guidelines when preparing such references:

• Since there is no general duty to provide an employment reference other than a certificate of service, an employer should confirm whether such an obligation is not created by legislation or regulations applicable in the sector or profession of operation.
• Implement a workplace policy that specifies who is entitled to provide a reference, how references should be dealt with and which information should rather be avoided when providing a reference. The purpose of this policy must be to ensure consistency in the provision of references and to avoid references, which are falsely positive or negative about an employee.
• Ensure that the prospective employer, who is requiring the reference, has obtained the necessary consent to do so from the job applicant.
• To ensure compliance with Protection of Personal Information Act 4 of 2013 (POPI), include a provision in the employment contract at the commencement of an employee’s service, in terms of which they agree to specific information being published in an employment reference at termination of their service or otherwise on request.
• In order to further comply with POPI, make sure that the reference is treated as private and confidential and that it is provided to the person who has consent to receive it, whether in writing or verbally.
• Verify the information contained in the reference and make sure that it is a fair and accurate reflection of the employee’s skills and abilities. The reference should be brief and only contain information relevant to the inquiry. Avoid subjective personal views. Information or allegations, which cannot be substantiated, must not be included. Ensure that the reference is objective and minimises the risk of misinterpretation of statements by making use of plain language and terminology that is common in the specific industry.
• Ensure that the contents of the reference are factual in nature and do not constitute an overly positive or negative opinion about the employee’s abilities.
• Treat all employees equally and consistently and avoid comments that may be construed as discriminatory.
• If necessary, provide a qualification to create a context in which the reference must be read and understood, for example, limited time that the referee has known the employee.
• Consider including a disclaimer, which stipulates that the employee has consented to the provision of the reference and that both the employee and prospective employer accept exclusion of liability, even though the effectiveness of such a clause is unsure.
• The same care should be taken in providing telephonic or verbal references as the care taken when providing a written reference."

Another article on this topic was published on the SEESA-blog by Tersia Landsberg in April 2019, where she also gave some pointers to employers: 

"Employment references must be reliable, and therefore not inaccurate or an unsubstantiated subjective opinion about the employee. The purpose of an employment reference is to ensure that the appointed candidate possesses the required skill and competencies and should therefore not contain more information than what is necessary for the prospective employer to make an informed decision. 

When asked to provide an employment reference, one should not use the opportunity to disclose all the employee’s shortcomings and wrongdoings. Employers should instead ensure that they provide meaningful, truthful and relevant information. Keep employment references factual and objective, treat all employees equally and consistently and avoid comments that may be construed as discriminatory." (Read the full article here.)

From a practical point of view,  employers should ensure that they have an internal policy in place in respect of who may give references, and what process should be followed if a request for a reference is received - telephonically or otherwise. It cannot be left  to the discretion of the individual staffer who may pick up the phone, to navigate this in the absence of a clear protocol in this regard. 

Judith Griessel

#helpingyouwork