On December 13, 2019, the Dutch Supreme Court (ECLI:NL:HR:2019:1950) provided clarity on the issue of giving references for former employees. Even after the employment relationship has ended, the employer and employee must act in accordance with the principles of being a good employer and a good employee. For this reason, negative comments about the ex-employee could be classified as unlawful and lead to liability on the part of the employer. In this article, we will discuss points to consider when requesting and providing references, given the case law.
In this case, the Supreme Court ruled that the employer, a bank, had not acted unlawfully towards its former employee by informing his new employer, also a bank, of the fact that the employee had been summarily dismissed and had not acted with integrity. The former employer had initially notified the Dutch Central Bank (DNB), the banking regulator, of this matter, which had asked the bank to inform the new employer. According to the Supreme Court, the bank's conduct was justified, in view of DNB's request and the relationship the banking regulator has with banks.
The fact that the ex-employer made negative comments about the employee to the new employer of its own accord, and not on the latter's request, is what makes this matter unique. If a former employer is contacted by a new or potential employer, its authorisation to provide a negative reference is much broader. For instance, in 2018 the Arnhem-Leeuwarden Court of Appeal (ECLI:NL:GHARL:7492) held that a school that, on request, had provided negative feedback about an ex-employee, had acted lawfully. According to the Court of Appeal, an ex-employer is even obliged to provide negative feedback in such situations, to protect the interests of third parties (students in this case). If a prior employer withholds any requisite information from a new employer, it may be liable for any damage later suffered.
In the recent decision, the Supreme Court thus considerably extended the ex-employer's authorisation, at least when there is a specific, identifiable need to inform the new employer.
Pointers for former employers
Despite this precedent, providing negative references of your own accord remains a risky business. When deciding whether to do so, a former employer should therefore weigh the interests of the ex-employee and those of the new employer or third parties, which is not always easy.
Case law offers...