Managing Risks When Asked for an Employee Reference

At times, one is called upon to provide an employment reference for a former employee who was hardly impressive.  It can be difficult to pinpoint the basis for believing that the employee was mediocre at best, or significantly inferior to his or her predecessors. So, what do you do and say when asked for a reference, and what kind of legal risks are you dancing around in providing or not providing a reference?

Risk of exposure to defamation action:

The first risk to be alive to is the risk of a defamation action being commenced against you.  Keep in mind that your former employee may be motivated to sue you for defamation if they believe, rightly or wrongly, that your less than stunning reference cost them a job.

So, how can you avoid legal risks, or at least best position yourself to defend such a claim?

  1. Govern not just your words, but your tone and insinuations: a defamation lawsuit is no less actionable when made by insinuation

It should come as no surprise that the best thing that you can do is to take great care in your message, including not only your words but your tone of voice and questionable pauses.  The meanings and innuendoes you may have to defend in a defamation action are not the meanings and innuendoes that you intended to convey, but rather the meanings the Court believes a reasonable and ordinary reader or listener would take from your message.    In considering this meaning, the Court will give regard to your whole message, including your tone, questionable pauses, and insinuations.

  1. Make sure that you have both an honest belief in each imputation conveyed, as well as a reasonable basis for that belief   

The most typical defence relied upon in a defamation employee reference case is the defence of qualified privilege.  Qualified privilege provides a complete defence for defamatory statements that turn out to be untrue, or not provable as being true.

When relying on this defence, you want to be able to convince a Court that you not only had an honest belief in the message you conveyed, but also a reasonable basis for that belief.  Here is why:

A former employee is usually able to establish that an occasion of qualified privilege arose.  An occasion of qualified privilege arises where:  (i) a person of ordinary intelligence and moral principle would have felt a duty to communicate the information in the circumstances; and (ii) the information was conveyed only to the recipients who had an interest in receiving it.  The reciprocity of interest is essential. Generally, the Court will find that such an occasion arises when you are asked to provide a reference.

A finding of malice, however, will defeat this defence.  An absence of malice is often established by showing that you “honestly believed” the truth of your message, and had a basis for that belief.

Determining whether one was motivated by malice when publishing the words entails an inquiry into the state of mind of the speaker or writer at the time the statement was made.

To find malice, a Court does not have to go so far as to find that one’s dominant motive in communicating information was “vindictiveness” or a desire to humiliate or injure.  Malice at law can also be found where the Court concludes that a statement was made with “reckless indifference” as to whether it was true or not.  Likewise, malice can be found where one is reckless by placing unreasonable reliance or belief in rumours, and giving credence and credibility to such unsubstantiated concerns.

  1. Don’t be too quick to think that a comment is fair

Although fair comment is a defence to a defamation claim, you should not assume your statements are fair comment unless you have a very convincing legal opinion that it is, and even then you should be wary.

Fair comment is a very technical defence.  To defend a statement as fair comment, one must meet the following stringent requirements: the comment must be on a matter of public interest; it must be a comment based on provable facts that are either stated with the publication or are otherwise known to the reader (such as being notorious); the comment, though it can include inferences of fact, must be recognizable as comment as opposed to a statement of fact; the comment must satisfy the following objective test: could any person honestly express that opinion on the proven facts; and, the defendant must not have acted with malice.

This defence often fails because the defendant is unable to satisfy the Court that the defamatory words would be recognizable to the ordinary reader as comment upon true facts, as opposed to a bare declaration of facts.  Depending on the context, the statement that “she is incompetent” could be found by the Court to convey either a comment, or a statement of fact.  The defence of fair comment is not available if the Court finds that it was conveyed as a statement of fact.

  1. Can you really prove a statement to be true?

The defence of truth, also referred to as “justification”, can provide a full defence to a claim in defamation. To succeed, the truth of every injurious imputation which the trier of fact finds to be conveyed by the message must be proven on a balance of probabilities to be true. The Court will focus on the sting of the defamatory imputations, and whether the various stings are substantially true.

The meanings that you will have to prove as being true is not the message you intended to convey, but the meaning the Court finds that your words and tone of voice would have conveyed to an ordinary reader or listener in the circumstances.

If the employee was not discharged for cause, chances are that your HR department is concerned that you cannot prove your concerns as being true in fact.  Even when discharged for cause, you may want to have a quick chat with a lawyer before speaking.

Risk that what you say will not remain confidential

Often, one becomes too comfortable or trusting of assurances that what you say or write will be confidential, not to be revealed to your former employee.  This is particularly the case where you know and trust the person to whom you are providing the reference.

Do not be naive, particularly in light of the fact that what you say or write (whether it be recorded by letter, handwritten note, or email) could become the subject of a freedom of information request by your former employee.

The matter of Vancouver Island Health Authority, 2011 BCIPC 5, illustrates an occasion when a public body was not successful in opposing disclosure of a job reference.  In November of 2009, the applicant nurse, requested a copy of a job reference that a physician had sent to the Vancouver Island Health Authority.  The Vancouver Island Health Authority denied the request for the reason that the job reference had been provided in confidence.

Upon review, the Office of the Information and Privacy Commissioner of British Columbia  (“OIPC”) established that there were three categories of information at issue: the third party’s contact information, which is excluded by the definition of personal information and cannot be disclosed; information on the third party’s working relationship with the applicant, which the OIPC concluded is information about the third party’s personal information; and information about the applicant’s position at the medical facility and evaluative comments about the applicant’s attributes and skills in the workplace, which the OIPC concluded was the applicant’s personal information.  As a result of these determinations, the OIPC found that the applicant had a right to access the details of their position at the medical facility.

Significantly, the OIPC concluded that the Vancouver Health Authority had not established that it received the reference information about the applicant in confidence from the third party even though the third party may have had expectations of confidentiality when providing the reference.  The personal information referenced above was ordered to be disclosed.

Concluding Remarks

While there is no common law duty to provide a reference, not providing one can have potential ramifications.  For instance, if a wrongful dismissal action is commenced, the refusal to provide a reference can be found as evidence of bad faith, resulting in an increase of the notice period (see for example Wallace v. United Grain Growers, [1997] 3 S.C.R. 710, para. 97; Schmidt v. Amec Earth & Environmental Ltd., 2004 BCSC 1012).

The best advice is to take care in the message you convey, ensure that you have a basis for the concerns expressed, and do not assume that your reference is provided in confidence.

Karen Zimmer practices at Alexander Holburn Beaudin + Lang LLP in Vancouver and leads its Defamation and Publication Risk Management group and is a member of its Information + Privacy group.