Q&A | Can we give a verbal reference? | Employment Law Update April

I have been contacted by someone who is seeking a verbal reference for one of our former employees. I have some good things to say about the employee. But there are also certainly a number of development areas that I would talk about. I cannot remember him specifically asking me to provide a reference for him. Am I allowed to give a verbal reference on his behalf?

It is not clear cut.

You should first contact this former employee to first confirm he is happy for you to provide a reference, before providing any reference on his behalf. Otherwise, you would be relying on an assumption you are authorised to provide a reference on his behalf, which is a risky approach for you to take. For a start, you are unlikely to know for certain if the person contacting you has been authorised to get a reference, or whether the person contacting you has been authorised to obtain one from you specifically (rather than someone else in your organisation). Your former employee must authorise both the person collecting the reference to collect it and they must also authorise you to disclose that reference.

Obtaining a verbal reference

This issue comes down to the Privacy Act 1993 (the Act) and more specifically, the Information Privacy Principles under s 6 of the Act. Principle 2 relates more to the prospective employer who is requesting the verbal reference. Principle 2 sets out the broad requirement that any personal information must be collected directly from the individual concerned. However, the principle refers to a number of exemptions to that broad requirement, including where “the individual concerned authorises collection of the information from someone else”. This is where the person asking for the reference needs to meet their privacy obligations by obtaining specific authorisation from the employee. But the matter does not stop there, on to your obligations next.

Providing a verbal reference

Principle 11 of the Act is more relevant to you, as the person who would be giving the verbal reference. This principle relates to the disclosure of personal information. The general principle is against disclosure of any personal information. That is unless an exception applies. One such exception, is where you believe, on reasonable grounds, that the disclosure is authorised by the individual concerned. This would be clear where the employee had contacted you and specifically asked you to provide a reference on their behalf. But that is not the situation you are dealing with.

You could try to argue that the fact that a prospective employer has your contact details and has contacted you that the employee has authorised you provided a reference. You could argue that you, therefore, believed on reasonable grounds that it was authorised. However, this is risky for you to do and you may not be successful with this argument. Firstly, note that under s 87 of the Act the onus would be upon you to prove your belief was reasonable. Further, there are a number of considerations that might undermine your belief in being reasonable. For example, the prospective employer might be breaching their privacy obligations and not have any authority to contact you. It could also be that the number you were contacted on was a generic publicly available number, or that you received a transferred phone call from a generic publicly available number. It could be that if you make a number of negative comments when giving your reference that it could be found that you could not reasonably believe the employee would authorise you to provide a reference on their behalf. It could also be that the employee authorised a different person to contact in the company rather than you. Note that a reference is not authorised for any management personnel to provide such reference, unless that is the specific instruction the employee has given, which it usually is not, and if you are going on the assumption you will never know exactly what the employee instructed. Most employees will give a specific name to be contacted for a reference. It is only that