January 22, 2003 by Israel Foulon LLP
Question: We have a standard policy with respect to letters of reference whereby a written reference is provided to the employee containing the following information: employee name, employment dates, last position with the company and final salary. Recently some concerns have arisen as to the adequacy of this policy. Is the information we provide in the reference sufficient or are we obligated to comment on the employee’s performance as well?
Answer: Many employers have adopted this practice of supplying a perfunctory letter of reference which simply confirms the factual details of the employment. Most likely this practice has developed out of a concern for being held liable for defamation or negligent misstatement. The problem with providing a reference of this kind is some potential employers will wrongly assume such a letter means the former employer has nothing good to say about the former employee. This can cause difficulties for the employee in finding a new job.
There have been cases in which courts have factored the failure to provide a meaningful letter of reference into the determination of the appropriate period of reasonable notice. This has in some cases resulted in an increase to the notice period. Therefore simply providing a brief reference to employees which sets out the factual details of employment may in fact expose an employer to liability rather than protecting it.
In circumstances where the individual has been a good employee and has made a positive contribution to the workplace, there is no reason why something about the employee’s attributes and contributions cannot be put into the reference. Clearly any such descriptions should be truthful, without exaggeration or overstatement.
On the other hand, where the employee has failed to meet the requisite standards of performance it may not be a good idea to discuss the employee’s deficiencies in the letter of reference. In such cases an employer can outline the facts of the employee’s employment but also provide a description of the duties and responsibilities in his position. This should prove more useful to the employee than just the factual type of reference described in the question. At the same time, the employer is not saying anything negative (or positive) about the performance of the less-than-adequate employee.
Peter Israel is the senior partner in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. He can be reached at 416-640-1550 or pi@qtw38575.mywhc.ca. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today