• Leah Norman

Providing a Reference for a poor-performing employee

Never Give A Bad Reference, Give An Honest One.


As a society, we appear to have moved away from the traditional written reference of yesteryear, and instead pick up the phone to call a former (or current) employer to get a true grasp of a potential new employee’s credentials. In many instances this method will can ask direct questions to elicit information that a written reference might never disclose.


Whilst not many people would give the name of a referee from a company that they didn’t do well at – it has happened and is likely to happen again.  So, what you should do if you are asked to provide a reference for someone you formerly employed, and perhaps that employee that didn’t perform well at your company (although they obviously thought they did!) or perhaps one that you had to ask to leave… Thinking about the approach you take now, may spare you grief later down the track.


There are two senses in which a reference might be bad.

  1. It does not reflect well on the employee, with the result that the employee risks not being offered the role.

  2. It is one that is misleading (ie. suggesting that the employee is better or worse than they are), and can that puts you at risk for having given it.

While both are of concern, a misleading reference is the primary type of bad reference that you, as the person giving the reference, should be concerned about as it risks landing you with a legal claim.


First things first, you are under no legal obligation to give an employee a reference, unless of course it is specifically covered in your employment agreement, or potential settlement agreement with that employee. So it is always an option to politely decline to give a reference or refuse to give a reference other than what you are willing to put in writing.


Also, it is important to note and understand that as an employer can only release personal information about an employee to a third party if authorised by the employee to do so.  


To avoid the consequences of a bad reference, you need to give one that is good – in the sense of not being misleading. A good reference is one that is truthful, even though it may mean the employee is not offered the job.


If a former employee is seeking a new job, they will probably give your name and telephone number to any prospective employer.  If they have told you that they have given your details to a prospective employer, for the purpose of you providing a reference, then you are required to advise the following:

  1. that you employed that person

  2. the position the employee held

  3. how long they worked for you

You do not need to make any other comment.  However if you do wish to comment you should:

  • tell the truth

  • stick to fact-based statements

  • avoid making judgments

  • avoid spreading misinformation: for example, you may believe that an employee’s drug problems were the source of her frequent lateness, however, don’t say “they have a drug problem and can’t get to work on time”.  You should say “they were late to work 12 times in the last month”

  • do not mention things that are irrelevant to the job: for example, health or marital problems

If you cannot say something positive about the employee, then do not give a reference at all.


When it comes to giving references, honesty is the best policy.


If you have been unhappy with the employee’s work and do not want to provide a reference, it may be helpful for you to tell the employee why, so that they are saved any potential embarrassment.  This should also avoid any difficult conversations that you have to have with potential employers.


Disclaimer

This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.