Many employers are hesitant about giving a less than glowing
reference, even about a former employee that left on bad terms.
Concerned about privacy issues or defamation lawsuits, they limit
their responses to dates of employment and job duties without
elaborating on performance or conduct. But is this necessary?
Not in every case. From a privacy perspective, an employer in BC
ought to obtain consent before providing a reference. The consent
need not be limited to a positive reference. The scope of the
reference should only cover information such as the employee's
job performance, conduct at work, and qualifications for the
prospective position. A reference, good or bad, given without
consent, could form the basis of a privacy complaint and, perhaps a
civil action if there are damages arising from the reference.
Employers are also concerned about liability for defamation if
they are seen as "bad-mouthing" former employees.
Generally, courts have found that references given by employers are
protected by qualified privilege: if, during a reference check, an
employer makes negative remarks that may otherwise be defamatory,
the employer is protected as long as the remarks are made in the
reasonable and honest belief that they are true. However, if
remarks are made maliciously or without regard to whether they are
accurate or true, this privilege may be lost.
In an Ontario case, Miller v. Bank of Nova Scotia,  O.J. No. 4765,
the Court found that comments made by a manager that a former
employee had an attitude, was uncooperative, complained a lot and
that she "would not recommend her" were covered by
qualified privilege because they were spoken without malice. The
Court found that the manager had a legitimate basis for making
negative comments about the former employee and expressed them
Some things to keep in mind when giving employee references
Confirm consent. If possible, confirm with an
employee at the time of termination whether they consent to
providing a reference to a prospective employer if contacted. If
you don't know whether the former employee consents to a
reference and you receive a call, it is good practice to confirm
that your former employee has listed you as a reference.
Ensure accuracy. Make sure any information
shared is correct. If you are not sure, it may be worth getting the
opinion of another manager to make sure you have been completely
fair and accurate.
Have a policy and follow it. Having a clear
policy on employee references that is consistently followed can
help eliminate guesswork and manage expectations from former
employees. Some organizations find it valuable to limit references
or only have them go through the human resources department.
New Rules for Human Rights Tribunal in
Effective July 15, 2014 the BC Human Rights Tribunal has issued
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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