References issued after end of employment

It frequently happens that during a job interview, at the request of his potential new employer, an applicant provides a reference referring to his former employer. If you, as a former employer, are acting as a reference, it is important to know the ground rules around giving a reference. These ground rules are not in the law as such, but can be deduced from various legal rules and case law.

Recently, the subdistrict court in Utrecht ruled that a former employer had not acted with due care by making disclosures about an integrity investigation, leading the new employer to decide at the last minute not to enter into an employment contract with the employee. The ex-employer was ordered to pay damages equivalent to the loss of income for one year because the employee had lost the job due to the disclosures made about the integrity investigation. In addition, the ex-employee was awarded non-material damages of €10,000.00 for violation of his good name.

The standard of good (former) employment practices also applies after the end of an employment relationship. When providing information about the employee, the former employer must take the employee's interests into account even after the end of the employment relationship. If the former employer simply provides information about the employee that is incorrect or negative, this can lead to unpleasant procedures and the obligation to compensate for damages.

If a former employee has not given permission to act as a referent, the former employer may not do so under the General Data Protection Regulation (GDPR) either. A legal basis is then missing. If, on the other hand, the ex-employee did provide the ex-employer as a sponsor, the ex-employee has consented to the provision of personal and employment data. The ex-employer can then provide references. The new employer, in turn, will have to provide feedback to the employee about the information it has obtained from the former employer about the job applicant.

If you as an ex-employer provide information after express consent of the ex-employee (i.e. with a legal basis), still be careful. If carelessness is exercised when providing the reference then it can lead to unlawful action by you as a former employer. This can come into play if information about an integrity investigation is provided, but also if this is done about the employee's disability during the time he was employed by you.

Some industries have specific rules that require certain information to be disclosed. In the financial and healthcare sectors, for example, special rules apply to references and certificates. It would take us too far to go into that now.

So remember that providing references without the ex-employee's consent is not wise. If that consent was given, still be careful to avoid being accused of acting unlawfully or providing information in violation of the post-contractual effect of good (ex-)employment practices.