An employer in Switzerland is obliged to write his employee a reference in a manner that he can obtain a new work position. The employer may thereby be liable for any false and overly negative work references that harms the employee's search.
In April 1975, the Swiss Federal Court ruled on a bank director having embezzled a noticeable amount of money from the bank, whereupon the bank dismissed him and issued a certificate of employment attesting that the employee worked to the company's fully satisfaction and recommending him in good faith whilst concealing the embezzlement committed.
Shortly thereafter, the dismissed employee misappropriated at the next job an even larger amount of money and was sentenced to four years' imprisonment.
The new employer enforced in court that the preceding employer issuing the said reference was liable for the financial loss. Even if the employment relationship's duration can affect the employer in his reference for the employee, he should always stick to the principle of duty to truthfulness. An employer who issues a favourable certificate of employment and thereby conceals work relevant information may be therefore held liable forgery of certificates. The new employer can trust the refences the old employer gave him and is to be protected due to his good faith.
Therefore, an employer must be aware of his potential liability for false positive testimonies and any exaggerated negative references. If the employee has no chance to find a new position because of such negative references, the employer might be obliged to compensate for the damage incurred by the employee.
The crux of liability lies in the causality between work references and receiving or not being chosen for the employment which is difficult to prove, because the reference is only one of many selection criteria.
Guidelines for writing a work reference
In order to avoid such labilities, an employer has to make sure that the reference he submits is true. A reference is considered to be true, if the content of the reference can be attested from an objective point of view.
The given reference should not unnecessarily affect the employee's chances for a new employment. Therefore, negative facts must be mentioned only if they are relevant to the overall assessment. In particular, one-time rather minor failures should be omitted.
In general, the employer has to choose wordings which are more favourable to the employee without attesting to much in his favour and thus risking to be untrue.
Negative issues significant to the overall image of the employee such as illegal behaviour discriminating and other harassing behaviour in the workplace, unreliable behaviour, multiple disregard of policies or an incapacity of teamwork have to be mentioned to be on the safe side.
The danger of recommending potential candidates
In these days, employers use social media to find new suitable employees for their company. A review of the social media profile of a candidate is common and therefore one of many hiring criteria.
The question is as to whether a professional recommendation given on LinkedIn makes a person and his employer liable.
It is clear that LinkedIn recommendations are not authenticated references. Nevertheless, the future employer can have good faith in the persons recommending a future employee since LinkedIn is considered a credible professional platform. This is all the more true for recommendations by a person working in the same or similar industry because they enjoy even more credibility.
Attesting abilities to a person lacking these abilities might be considered unfair competition. Swiss laws against unfair competition considers a promotion of work qualities inconsistent with real professional achievements as unfair competition. Committing unfair competition can cause a liability for the caused damage and might be even a criminal infringement that can lead to prison sentence.
In a nutshell: think twice before recommending a colleague on LinkedIn without knowing him or her too well. Even if well meant, this could put you and your employer at risk.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.