Is honesty always the best policy? When it comes to providing a negative reference about a former employee, the answer is a cautious “yes.”
As HR practitioners, we have multiple obligations, which includes the professional requirement to act in good faith, with honesty and integrity. Furthermore, we must undertake due diligence to meet numerous legal and organizational conditions in order to ensure regulatory compliance. When all of these factors work in alignment, HR practitioners can be reasonably assured that our professional obligations are being met.
Reference checking, as part of the last stage of a candidate selection process, may sometimes stand as a barrier to meeting these obligations. On the one hand, reference checks provide for honest insights from a third-party perspective into the characteristics of a potential candidate. On the other hand, the reference checking process can turn into a minefield of negative consequences if not managed properly, by both the recruiting employer and the employer providing the reference.
An example of the consequences that can arise from providing a negative reference can be found in the case of Papp v. Stokes et al, 2018 ONSC 1598. This case, summarized here, occurred as a result of a former employer stating to a potential new employer that the candidate they were considering had interpersonal issues with former colleagues. As noted in this additional article, the former employer also stated there was “no way” they would re-hire this person. As a result, the person was not hired, and went on to file a civil suit for defamation against the previous employer, based on the negative reference. As noted in both case summaries, the courts found the former employer was not at fault and dismissed the defamation complaint. The decision by the courts was based on the fact that the former employer had provided a truthful reflection about the person that was not malicious in any way.
While this seems to be a ‘winning’ case from the employer’s perspective, it comes with several resultant cautions. References must be based on a factual representation, and must not veer into personal opinion, or that which may be perceived as a malicious attack. This can be done through written reference letters or online questionnaires that provide neutral job-related information about the candidate. In-person reference checking, however, may be influenced by both tone and subjective perceptions about what is being communicated in relation to a particular candidate. Even though the risk of a lawsuit may be low, no employer wants to find themselves on the receiving end of a claim that may not be defensible, both in evidence and in fact.
What is an HR practitioner to do? Ensure that the evidence and facts reflected in each decision-making step of the employee selection process, including reference checking, is based on due diligence, good faith, honesty, and integrity.
Discussion Questions:
- As a job candidate, what steps can you put into place to ensure your references provide accurate information about you to a prospective employer?
- From an HR perspective, what types of protocols do you think should be put into place to reduce the risks of negative reference checks?
- What will you do when you are asked to provide reference information about a former employee who was a poor performer and had ‘attitude issues’?