References - Risks and Responsibilities

Published February 26, 1999

At first glance, the issue of providing employment references - or asking for them - would seem straightforward: employees request a reference because they presume it will be positive; employers provide a reference because they want to assist employees in their job search. Most employers provide honest assessments of an employee's skills while emphasizing the positives and downplaying the negatives.

Below this smooth surface, however, there are some complex employment law issues. For example, employers can be held liable to employees and to other employers for defamatory, fraudulent or negligently prepared references. This suggests that a safe course of action is to not provide references: but there are similar legal dangers in refusing to provide a reference, particularly when an employer has an interest in a dismissed employee finding a new job (this is because an employee alleging "wrongful dismissal" has a legal duty to "mitigate" or reduce his losses, usually by finding other employment - and the original employer doesn't want to be perceived as hindering this). In any event, the practice of providing honest references benefits virtually all employers and a large majority of employees, and should be continued.

Clearly, these issues are important in the sport environment, as the following scenarios suggest:

• You are a coach who has resigned from a position due to a personality conflict with the President, and you are pursuing other coaching employment. You would like an employment reference, but you don't feel that the President can provide an unbiased assessment of your performance. What do you do?

• You are an administrator who has been asked by another club to supply a reference for a former coach. Although you have no "proof" you have ample reason to believe that he is unethical. In fact, rumours and allegations about inappropriate conduct with youth contributed to your decision not to renew his contract last year, and he is still not working. What do you do?

• An assistant coach who is a friend, and who works in your sport (but not directly under your supervision) has asked you, as head coach, to provide a letter of reference. You don't have a lot of first-hand knowledge of your friend's coaching work, and you have heard mixed reports from others. What do you do?

The greatest risks in this area are to those supplying reference and include the following:

Liability for defamation. A negative reference may be defamatory if it contains information that is untrue or which cannot be substantiated. The defense against this risk is, of course, that the information is true. As well, the courts have allowed the defense of "qualified privilege" - in other words, if the individual providing the reference honestly and reasonable believed that the defamatory information was true, that person may be protected from liability.

Liability for negligent misrepresentation. When providing a reference, once must take care not to misrepresent an employee's qualifications, skills, performance or history. Negligent misrepresentation refers to someone unknowingly or unintentionally providing inaccurate information in a reference that later gives rise to harm to either the employee or the employer receiving the reference.

Liability for fraudulent misrepresentation. This occurs when the person providing the reference knowingly or intentionally misrepresents an employee and the employee or subsequent employer suffers damage. This usually occurs in the context of the employer painting a rosy and inaccurate picture of an employee it wishes to get rid of, and the subsequent employer relying upon that information, to their detriment.

Liability arising from refusal to provide a reference. Although no employer has a positive duty to supply a reference when asked, not doing so can have adverse consequences if the reference is for an employee who has been released or dismissed. As noted previously, an employee who is dismissed has a duty to take reasonable steps to mitigate his or her damages by finding alternative employment. A refusal to provide a reference can lessen or eliminate this duty, with the result of weakening the employer's position in the event of any litigation over severance pay. The handling of references in such situations is complex and an organization would be wise to get legal advice first.

Knowing about these legal responsibilities, what are the best ways to respond in the above scenarios?

• The first scenario might be a "no-win" for you. Your former supervisor is obliged to provide an objective, fair and accurate reference, and to do so without any bias or malice. If you have no other options then you could allow her to stand as a reference. However, you might want to try to identify others within the organization who know your work, such as other credible individuals in voluntary leadership positions.

• The prudent course of action in the second scenario is probably to decline to provide a reference. This coach has been shadowed by rumours but nothing is verifiable. The situation would be different if the coach's unethical practices had been the subject of an investigation or disciplinary action properly carried out by your organization under its governing policies - in this case, you could provide a truthful reference and state that the coach had been investigated or disciplined, and the outcome of that action.

• While it might be tempting in the third scenario to do your friend a favour, it would be ill-advised if you are unable to speak accurately about his coaching competence. Ask your friend if you might supply a character or personal reference instead, as opposed to a professional reference, and encourage your friend to seek references from those who work alongside him and can better appraise his coaching skills.

The Ottawa law firm of Emond Harnden, specialists in employment law, write in a recent newsletter (October 1998) that the Ontario Consumer Reporting Act may oblige an Ontario employer who denies employment to an individual as a result of a critical reference, to advise the individual of this fact. The unsuccessful candidate is then entitled to ask the employer for the source and general nature of the reference. In practice, few employers do this and there do not appear to have been any prosecutions for failure to comply with this legislation.

Originally published: Coaches Report (1999) Vol. 5(3)