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:
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 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)