There is no legal obligation to give an employee a reference, unless it is specifically covered in your employment agreement with that employee.

An employer can only release personal information about an employee to a third party if authorised by the employee to do so.

If a former employee is seeking a new job, they will probably give your name and telephone number to any prospective employer.  If they have told you that they have given your details to a prospective employer, for the purpose of you providing a reference, then you are required to advise the following:

  1. That you employed that person.
  2. The position the employee held.
  3. How long they worked for you.

You do not need to make any other comment.  However if you do wish to comment you should:

  1. Tell the truth.
  2. Stick to fact based statements.
  3. Avoid making judgments.
  4. Avoid spreading misinformation: for example, you may believe that an employee’s drug problems were the source of her frequent lateness, however don’t say “she has a drug problem and can’t get to work on time”.  You should say “she was late to work 12 times in the last month”.
  5. Do not mention things that are irrelevant to the job: for example, health or marital problems.
  6. If you cannot say something positive about the employee, then do not give a reference at all.

If you have been unhappy with the employee’s work, and do not want to provide a reference, it may be helpful for you to tell the employee why, so that they are saved any potential embarrassment.  This should also avoid any difficult conversations that you have to have with potential employers.

In that situation, you should provide a certificate of service confirming the job title, responsibility and start and end date.

Advice for Potential Employers

You can only follow up on references that the potential employee has provided for you.  If you contact a previous employer, and they have not been authorised by the employee to provide you with information, then they are not allowed to tell you any personal information about that employee.

If a previous employer has only provided a certificate of service, or does not want to talk with you even after the employee has given them permission to do so, alarm bells should go off and you should be particularly careful about the decision you are about to make on employing that person.