Requesting and providing references – a risky business!

On 13 December 2019, the Dutch Supreme Court provided clarity on the issue of giving references for ex-employees. Even after the employment relationship has ended, the employer and employee must act in accordance with the principle of being a good employer and a good employee. For this reason, negative comments about the ex-employee could be classified as unlawful and lead to liability for compensation on the part of the employer. In this blog, we will discuss the points to consider when requesting and providing references, having regard to the case law.

In this case, the Supreme Court ruled that the employer, a bank, had not acted unlawfully towards its ex-employee by informing his new employer, also a bank, of the fact that the employee had been summarily dismissed and had not acted with integrity. The employer had initially notified the Dutch Central Bank (DNB), the banking regulator, of this matter, which had asked the bank to inform the new employer. According to the Supreme Court, the bank’s conduct was justified, in view of DNB’s request and the relationship the banking regulator has with banks.

The fact that the ex-employer made negative comments about the employee to the new employer of its own accord, and not on the latter’s request, is what makes this matter unique. If an ex-employer is contacted by a new or potential employer, its authorisation to provide a negative reference is much broader. For instance, in 2018 the Arnhem-Leeuwarden Court of Appeal held that a school which, on request, had provided negative feedback about an ex-employee, had acted lawfully. According to the Court of Appeal,  an ex-employer is even obliged to provide negative feedback in cases like this, to protect the interests of third parties (students in this case). If an ex-employer withholds any requisite information from a new employer, it may even be liable for any damage to be suffered.

The Supreme Court thus considerably extended the ex-employer’s authorisation when there is a need to inform the new employer. Despite this, providing negative references of your own accord remains a risky business. The ex-employer should therefore weigh up the interests of the ex-employee and those of the new employer or third parties, which is not always easy.

Case law offers ex-employers the following pointers:

  • Do not contact the new or potential employer of your own accord. If it does seem necessary to do so, for instance due to the specifics of the sector or third party interests, first try to find out if it is possible to notify a regulatory authority or to obtain advice from;
  • If the (potential) new employer asks for a reference, verify whether the ex-employee has consented to this and check whether providing references is justified or perhaps even obligatory in the sector. If so, limit yourself to giving the strictly necessary negative feedback;
  • If there is no need to share negative feedback, refusing to provide a reference might be better than providing negative feedback. In that case, refer the (potential) new employer to the job applicant.

What about the potential employer?

The new employer, too, has to take care when requesting a reference. Last year, the District Court of The Hague (ECLI:NL:RBDHA:2019:6145) ruled that a university had acted unlawfully by requesting information about a job applicant from the previous employer without the job applicant’s knowledge or consent. By doing so, the university had acted contrary to the GDPR and the applicable recruitment codes.

The potential employer thus has to be mindful of the following:

  • Do not contact ex-employers that have not been listed by the job applicant as a reference, unless the job applicant has given his explicit consent;
  • When requesting references, only enquire about information that is relevant to the position.

Merel Keijzer (mk@clintlegal.com / +31 20 820 0330)