Howard Levitt: Are departing employees entitled to a reference?

Article content

For example, if an employee was fired for theft and their employer provides a positive reference with no suggestion of impropriety, that employer can be sued if the employee goes on to steal from their new company.

Article content

Now consider the opposite scenario: the negative reference.

Article content

Employees often assume that a damaging reference is automatically defamatory. That is not so.

Article content

Defamation, in its simplest terms, involves a statement that would lower a person’s reputation in the eyes of a reasonable listener. But the analysis does not end there. The law provides defences — and in the employment context, one looms particularly large: qualified privilege.

Article content

Certain communications are protected because the law recognizes a social interest in them being made freely. References fall squarely within this category.

Article content

Courts have consistently held that employment references attract qualified privilege. That means the person giving the reference is protected, even if the statement is damaging, provided it is made honestly, without malice and without reckless disregard for the truth.

Article content

Article content

Employees are often surprised to learn that the privilege analysis comes first. If qualified privilege applies and is not defeated by malice, the claim effectively ends there. The former employee does not even reach the question of whether the statement was true.

Article content

Truth — or “justification” in legal parlance — is, of course, a complete defence to defamation. But in practice, the shield of qualified privilege is what gives employers comfort in speaking candidly.

Article content

The operative word is candidly — not carelessly.

Article content

Malice will defeat qualified privilege. That includes spite, bad faith or using the occasion of a reference to settle scores. Exaggeration, speculation or repeating unverified rumours can also strip away protection. An employer who strays beyond honest opinion grounded in fact risks exposure.

Article content

This is where nuance matters. A referee is entitled to provide opinion, but that opinion must be based on facts that are substantially true. Saying, “In my view, she struggled with deadlines,” will likely be protected if it reflects documented performance concerns. Saying, “She is dishonest,” absent proof, is an invitation to litigation.

Article content

Article content

So where does this leave us?

Article content

For employees, the lesson is painfully simple: never assume. Before listing someone as a reference, ask explicitly whether they are prepared to provide a positive one. Do not rely on politeness. We have seen cases where a supervisor agreed to act as a reference, only to deliver a quietly devastating assessment. The candidate learned of it after months of unexplained rejections. It is a brutal way to discover that professional goodwill was not mutual.

Article content

For employers, the calculus is more strategic. You are not obliged to provide a reference. But a blanket refusal may have downstream consequences in wrongful dismissal litigation. If you choose to provide one, ensure it is accurate, measured and free of animus. Document the factual foundation for any negative commentary. Train managers not to freelance.

Article content

And resist the understandable impulse to sanitize reality for the sake of expediency. A dishonest positive reference may feel humane in the moment. It is not. It merely transfers risk — and potentially liability — down the line.

Article content

In the end, references remain one of the few places in modern employment law where character still matters. The legal framework — negligent misrepresentation on one side, defamation and qualified privilege on the other — is designed to encourage honesty, not perfection.