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You Said What? Negative Employer References

1 minute read

It is not unusual for an employer to be asked for a letter of reference from an employee who is leaving for any of a variety of personal reasons or upon a termination which is not for cause.  In some cases, former employers will make not entirely positive statements when c­alled upon to give a reference.  To what extent can the former employer be held responsible for a candid, honest assessment that includes elements of negativity?

In general, references are protected from claims of defamation.  The former employer is typically protected if the statements are true and subject to “qualified privilege”.  If given without malice, an employer may give a reference with candour as to the strengths and weaknesses of the employee.  This helps to ensure that prospective employers are not misled.  If the statements are honestly held opinions and not tainted by a dominant motive of malice, whether in the form of spite, ill will, ulterior purpose at odds with a reference or making known or reckless dishonest comments, an action is unlikely to succeed.  This was demonstrated by the Court of Appeal for Ontario upholding a trial decision dismissing a claim of defamation in Kanak v. Riggin (2018 ONCA 345) where the plaintiff was unable to establish that the comments made by the former employer were with malice.

Nonetheless, it may also be helpful, when asked to provide a reference, to ensure that an honest assessment is provided and if you might provide any negative statements, to advise that you will feel free to answer any question asked with honesty and without constraints.  If the requester is at all concerned that the former employer might say something negative, then the former employee should ask someone else to provide the reference.

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Michael M. Lerner

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