Getting a Reference: Is an Employer Legally Required to Give One?
In New Zealand, the question of whether an employer is legally obliged to provide a former employee with a reference is a common one. Generally, there is no direct statutory requirement for an employer to provide a reference. However, specific circumstances or legal principles may create obligations or implications for employers who choose to provide one.
No General Legal Obligation
New Zealand's primary employment legislation, including the Employment Relations Act 2000, does not impose a general statutory duty on employers to provide references for current or former employees. This means that, in most cases, an employer is not legally compelled to write a reference even if requested by an employee [Source: Employment Relations Act 2000, general principles].
Contractual Obligations
While there is no general legal duty, an obligation to provide a reference can arise from an employment agreement or a collective agreement. If an employee's employment contract or a relevant collective agreement explicitly states that the employer will provide a reference upon request, then the employer would be contractually bound to do so [Source: Contract law principles].
The Principle of Good Faith
The Employment Relations Act 2000 requires all parties to an employment relationship to deal with each other in good faith [Source: Employment Relations Act 2000, s 4]. While the duty of good faith is broad, it typically applies to the conduct of the employment relationship itself and its termination. It does not generally extend to creating a positive obligation to provide a reference. However, if an employer does decide to provide a reference, the good faith principle might inform how they approach the task, ensuring fairness and honesty.
Accuracy and Truthfulness if a Reference is Provided
If an employer chooses to provide a reference, New Zealand law requires that the information provided must be accurate, truthful, and not misleading. Providing a reference that contains false, inaccurate, or misleading statements can lead to potential legal consequences for the employer:
- Defamation: If a reference contains false statements that are damaging to an employee's reputation, the employee could potentially bring a claim for defamation. Defamation is the publication of a false statement that harms a person's reputation [Source: Defamation Act 1992, s 6].
- Negligent Misstatement: An employer could be liable for negligent misstatement if they provide a reference that is negligently inaccurate and causes foreseeable financial loss to a third party (e.g., a prospective employer who relies on a falsely positive reference) or to the employee themselves (e.g., a falsely negative reference preventing employment).
Therefore, employers often exercise caution when providing references, typically restricting them to factual information such as dates of employment, job title, and sometimes responsibilities, rather than subjective opinions.
Employee Privacy and Access to References
The Privacy Act 2020 governs how personal information is collected, held, used, and disclosed in New Zealand. Personal information includes any information about an identifiable individual [Source: Privacy Act 2020, s 7].
If an employer provides a reference, they are disclosing personal information about the employee. Employees generally have a right to request access to any personal information an agency (including an employer) holds about them [Source: Privacy Act 2020, s 49]. This means an employee can usually ask to see a reference that has been given about them. Employers must comply with these requests unless a specific exception under the Privacy Act applies.
Discrimination Concerns
The Human Rights Act 1993 prohibits discrimination on various grounds, including sex, race, age, disability, and others [Source: Human Rights Act 1993, s 21]. While an employer is not generally obliged to provide a reference, if an employer refuses to provide a reference, or provides a negative reference, for discriminatory reasons, this could potentially constitute unlawful discrimination under the Human Rights Act 1993.
When to Seek Independent Legal Advice
Persons involved in employment disputes, or those seeking clarification on their specific rights and obligations regarding employment references, are encouraged to seek independent legal advice. Information regarding employment law is available from the Ministry of Business, Innovation and Employment. For free advice and assistance, individuals can also contact their local Community Law Centres.
Key Resources
- Employment Relations Authority: https://www.era.govt.nz/
- Employment New Zealand (MBIE): https://www.employment.govt.nz/
- New Zealand Legislation: https://www.legislation.govt.nz/
- Privacy Commissioner: https://www.privacy.org.nz/