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Are Employers Obliged To Provide References For Past Employees?

employers obliged

Employers are under no obligation to provide either written or verbal references for their employee (whether they are currently employed or have been terminated), and as such are able to refuse requests to provide a reference.

Due to the potential risks of facing a defamation or misrepresentation claim, many employers have today moved away from providing references, and in sometime instances have reinforced this position through company policy. Instead, such employers will now only provide their employees with a Statement of Service which simply confirms details of the individual’s employment history with their organisation, rather than detailing the individual’s capabilities or competence.

A Statement of Service will generally outline:

·         The position that is/was held by the individual,

·         The duties that are/were undertaken by the individual, and

·         The dates from which the individual was employed.

A template for providing a Statement of Service is available from the Resources section of our website.

As an employer, should you decide that you do want to provide a reference for an individual employee, it is important to be aware that under common law, a duty of care is owed to ensure that the reference provided is fair and accurate.

It is recommended that when providing a reference, whether written or verbal, you:

·         Only provide factual and truthful information regarding the individual’s performance and capabilities.

·         Avoid disclosing any personal details about the individual that are not directly related to their employment

·         Avoid exaggerating the individual's level of competence and/or capabilities.

·         Avoid making any negative or defamatory comments about the individual, even if their employment with you ended on bad terms.

If you can’t answer a reference question honestly, or if you are not able to respond positively to a question asked about the individual, it is recommended that you do not answer the question/s. A response to such situation could simply be “I am not in a position to answer that question”.

If you have any questions regarding either providing reference checks for your employees, or conducting reference checks for potential candidates, please do not hesitate to contact our HR Advisory Team on 1300 720 004 or via email at [email protected].

Information in HR Advice Online guides and blog posts is meant purely for educational discussion of human resources issues. It contains only general information about human resources matters and due to factors such as government legislation changes, may not be up-to-date at the time of reading. It is not legal advice and should not be treated as such.

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