Can HR give a bad reference?

January 25, 2018

Can HR give a bad reference?

It’s a bit of an urban myth that employers are not allowed to give a bad reference for an ex-employee. But as with most myths, there is a little truth behind it.

Today, I’m going to discuss whether or not HR can ever give a ‘bad’ reference. I’m also talking to HR and recruitment experts, to explore ways you can respond to reference requests about an employee who you don’t feel deserves one.

The law is clear: references must be factual

Despite what many people think, employment law in most countries does not actually prevent employers from giving a ‘bad’ reference. As explained by UK employment advice service ACAS, references must simply “be a fair reflection and accurate”.

But while this doesn’t prevent previous employers from giving a ‘bad’ reference, you must still be wary about including any conjecture, or personal assessment of a person’s character. In other words, you should steer clear of making statements that are subjective or opinionated.

Guidance by ACAS includes:

  • There is no legal obligation to give a reference
  • If one is given, it should be fair and accurate
  • Prospective employers may only request a reference with the candidate’s permission

In many countries, employment law is a variation on the same theme.

Giving bad references can be risky – especially in countries with litigation culture

The USA is perhaps the country most strongly associated with ‘litigation culture’. People seem able to sue, or to be sued, for almost anything. And even if you’ve done nothing wrong, you’ll still need to fork out cash to defend your case. For this reason, employers are often very reluctant to give out ‘bad’ references for ex-employees who have caused them trouble.

“You can give a bad reference, but it has its risks” explains Dan Kalish, Managing Partner at HKM Employment Attorneys. “If you give a bad reference, and the person does not get the job, you could be liable for defamation. To avoid these risks, several companies have a policy that they will only give out dates of employment and last position held for all their former employees.”

Many people agree that you’re unlikely to land yourself in trouble for stating facts – for example, an employee’s attendance record, or their start and end dates. But anything that could be considered a personal interpretation of these facts, which goes on to affect the employee’s future career prospects, could cause trouble.

Three ways to deal with reference requests for ‘bad’ employees

Many employers consider it a challenging moral decision, when they get a reference request through for somebody who they consider a ‘bad’ ex-employee.

“I could never give somebody a good reference if I didn’t think they were a good employee” explains Brianna Rooney, founder of Techees.com. “I would never omit the positives, but I would tell the whole story. I wouldn’t want to do a reference check and have a company lie to me. Therefore, I would never do that to someone else.”

So how do you deal with the request? After speaking to experts, I found that there were three main trains of thought.

1. Refuse the reference request

From a legal standpoint, refusing a reference request is probably the safest way to go. The guidelines by ACAS say that there is no legal obligation to provide one, and according to lawyer Dan Kalish, “a former employee will generally not have a claim against you if you refuse to provide a reference.”

Of course, some employers feel that providing a reference is the least they can do to help an ex-employee on their way.

2. Only mention the positives

Possibly the most common way to get around providing a reference, is to only mention the positive traits an employee exhibited. For example, if an employee was really bad at timekeeping, but really good at hitting their sales target, then the previous employer might mention how well the employee did meeting their quota, but say nothing about their punctuality or deadlines.

But while it is up to the new employer to make their own assessment of the facts, talking about positives while omitting negatives could actually lead to a false assessment of the candidate’s value. And this could be detrimental to the prospective employer’s business.

3. Confirm only the dates of employment

When faced with a reference request, some companies have a policy of only confirming the start date, end date, and job role of the ex-employee. This can be a good way of responding to reference requests relating to employees who you feel did not perform their job role well. And according to Nannina Angioni, employment attorney with Kaedian LLP, this policy is a good one to apply to all reference requests as a rule of thumb.

“This protects the company against claims by the former employee if you say something negative” she explains, but adds that “you also don’t want to give a false positive recommendation. If, for example, the ex-employee stole money and in talking with a potential new employer you praise the former employee’s trustworthiness, you could find yourself on the receiving end of a complaint by the new employer.”

What do you do when somebody requests a reference for a ‘bad’ employee?

The ideas listed above are a good representation of the common ways employers respond to reference requests for ‘bad’ employees. But I realise there are many more angles and approaches. How do you tackle the issue?

 

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