Every employer has to deal with this at some time or another: providing references. In this article, we tell you whether this is allowed, whether it is required and whether it can get the employer into trouble.
No legal obligation
The law only stipulates that the employer must issue a ‘certificate’ if the employee requests one. A certificate is no more than a written statement of exactly what the employee has done and during which period. Only if the employee so wishes, something can also be said about the employee’s performance and the manner of and reasons for the termination of the employment contract. There is no such obligation when it comes to providing references. The employer does not have to provide a reference, even if the employee requests it.
Is the employer allowed to issue references?
Under the General Data Protection Regulation (GDPR), an employer is not allowed to simply pass on data to third parties. This is only allowed if the employer has a so-called ‘basis’ for doing so, such as the employee’s explicit consent or a legal obligation. The (former) employer may not assume too quickly that such permission exists; the employee is in an unequal position and may therefore feel obliged to agree, while he/she actually does not want to.
What information must be provided?
A reference must give a full picture of the employee’s performance, even if it is (in certain respects) negative. If the employee does not want the (former) employer to provide negative information, he/she must indicate this clearly. Which information must be given, depends on the questions of the future employer, the seriousness of certain behaviours of the employee, the nature of the position, the interests of third parties involved, the time lapse after certain negative events and the possible improvement shown.
Liable for (incorrect) reference
Both when the (former) employer issues references without permission or necessity, and when the reference (knowingly) contains incorrect information, this can lead to liability of the (former) employer towards the employee or future employer.
The issuing of references is not bound by strict rules, but there are a few things to keep in mind. So pay attention and contact us if in doubt!
Should you have any questions about this, please contact Natascha Niewold, or one of our other labour lawyers.