Pitfalls in providing references

06 Nov 2018

On 21 August last, the Court of Appeal in Leeuwarden rendered an interesting ruling concerning the issuing of references.

Benjamin Vaandrager

The employee in question had been employed on the basis of a fixed term contract as a teacher at a comprehensive school. This contract was not renewed, amongst others as a result of the fact that during his employment the school had received information from various sources that the employee had been dismissed at his previous employer because of inappropriate behaviour towards female students and colleagues.

Subsequently, the employee had applied for a teaching position at a third employer. In his application he had - without prior consultation - listed his previous employer as a sponsor. As soon as the potential new employer checked the references with that sponsor, the previous employer/sponsor informed the potential employer that female students and colleagues did not feel safe with the employee and that he had for that reason been dismissed at another employer. This resulted in the employee in question not being hired by the potential employer. Subsequently, the employee brought a liability suit against his previous employer for issuing that information.

After the employee’s claim were waived in first instance, he appealed that ruling. The court of appeal also waived his claims. The court’s ruling was based on the fact that if an employee mentions a former employer as his sponsor, he basically consents to the issuing of data and information regarding him as a person and an employee. This information could potentially also have a negative impact. Whenever an employee does not wish for certain information to reach a potential employer, he should so indicate. After all, a former employer is obliged to paint as accurate a picture as possible, or else he would be acting wrongfully towards the potential new employer.

This once again shows that providing and receiving references can carry some risks that may result in liability for the employee as well as the former and potential new employer. The former employer is not obliged to render references concerning his (former) employee to third parties, but if he decides to do so, he must ensure that a correct picture about that employee is provided. If he fails to do so, or if the picture is incomplete, this may lead to liability towards the new employer. The potential new employer who wishes to acquire information from a third party about an applicant, must beforehand request permission from the applicant and afterwards provide feedback regarding the information received. Finally, a former employer is in principle not at liberty to – without having obtained the prior permission from his (former) employee – provide information on the performance of that (former) employee. In case that permission is granted, however, it is the responsibility of the employee to explicitly indicate to his (former) employer that certain negative information should be excluded.