At a glance
Director, Robert Half
There are many factors that contribute to recruitment decisions, so a company may not be able to take legal action against you for giving a reference that is not entirely true. However, you do risk damaging your reputation if you’re not honest, and that can be very difficult to win back. It’s best to stick to the truth.
Giving an honest reference is better for everyone in the long run. In addition to employment law, we also cover injury litigation and we often see injured people who just want to get back into the workforce. They may ask their referee to not reveal their injury in the course of giving a reference.
Employers have a duty to prevent employees from being injured at work but if they don’t know the whole truth about a person’s capabilities, they can’t put reasonable steps in place to keep them safe, and this can have serious implications for the business. By not mentioning the injury in your reference, even if there’s no direct question about it, you’re lying by omission.
If you do decide to be a referee, make sure your understanding of the truth is in fact the whole truth. If what you say about someone is untrue and causes them to suffer a loss, it may be considered defamatory.
I think if you can’t give a positive and honest reference for someone, you’re probably not the best person for the job. Be confident about telling the truth or don’t be a referee.
Principal consultant, Master HR Solutions
Referees shouldn’t lie, however they are under no ethical obligation to reveal information unless it is in answer to a direct question.
The art is in the interviewing. If the person conducting the reference check does not ask a question that may reveal something important about the employee, you do not have to volunteer the information. If they haven’t done a thorough job of their reference check and even if there are questions that you think they should be asking, you do not need to come forward and say “Did you know …?”
When you do reveal information, it’s important to be aware of privacy issues. If an employee has not given you consent, as their referee, to provide personal information about them, such as health information, you mustn’t do it as you may be in breach of the Privacy Act.
Sometimes, the person doing a reference check will ask for personal information because they want to get as much information as possible about the person they may be hiring and it’s very easy for referees to inadvertently divulge it.
Some referees are nervous about providing negative comments about an employee during a reference check for fear of defamation. However, if the information you are providing is true, it cannot be defamatory, even if it does adversely affect the applicant because they don’t get the job.
Should you always tell the truth when giving a reference? There is no obligation whatsoever to reveal information unless you are directly asked a question. Your obligation is to not lie.
Andrew Brushfield is the Victorian and Western Australian director of specialised recruitment company Robert Half. He is charged with running the Melbourne CBD, Mount Waverley and Perth businesses.
Peter Gibson has been at Shine Lawyers for more than 14 years. Among other practice areas, Gibson has a special interest in workplace issues, particularly safety and the management of workplaces.
Corrinne Zuchetti is owner and principal consultant of Master HR Solutions. A licensed HR coach, she works with businesses to build their skills and insights in managing employees. Zuchetti is a member of the Australian Human Resources Institute, and is studying for a master of law degree at the University of Sydney.