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 person who is authorised to provide the reference.
In fact, a recent decision of the HRRT involved an employer unsuccessfully claiming they had a reasonable belief of being authorised to provide a reference on behalf of a former employee due to the person requesting the reference having the employer’s contact number: Director of Human Rights Proceedings v Katui Early Childhood Learning Centre Ltd  NZHRRT 55.
The employee provided her new employer with a CV naming a particular person (the centre manager) in her old employment as her referee and providing the telephone number of her old employer as the means of contacting that referee. However, when the new employer tried ringing the referee, the referee was unavailable. The new employer then asked the person who answered the phone, the acting centre manager, if she would supply a reference instead. She said that she would not, and when asked if she would re-employ the employee, she said that she would not do that either. She gave the contact details of the owners of the employer, and the one contacted likewise spoke negatively about the employee. When the employee arrived in Auckland to start the job she believed was hers, the new employer said that her references had been negative and therefore she could not commence the job.
The Tribunal found that the onus of proof in establishing the reasonable belief the employee had authorised the provision of the reference laid with the old employer. This decision made it clear that if a prospective employee names a particular person as their referee, that person, and only that person, should provide the reference unless there is a clear mandate for an alternative to be approached. There had been considerable friction between the acting centre manager of the old employer and the worker, and between the co-owner of the old employer and the worker. The Tribunal did not consider that either of the persons from the old employer who spoke with the new employer could have believed, on reasonable grounds, that the worker authorised them to disclose personal information about her. The old employer also maintained that because the worker gave the old employer’s phone number in the knowledge the centre manager would be on leave, she was impliedly authorising all management of her old employer to speak with the new employer. The Tribunal did not accept this. The manager was spending up to two hours per day at the premises of the old employer.
The Tribunal found that the disclosure had caused the worker “loss, detriment, damage or injury” in terms of s 66(1)(b)(i) of the Act and the old employer was ordered to pay the employee compensation for hurt, humiliation and injury to feelings.
Given the risks that you face in seeking to rely on an assumption that the employee has authorised you to provide a reference, you should ensure that you obtain specific authorization from the employee to provide the reference. If you have been contacted by a prospective employer checking a reference, then you should contact the employee, perhaps by text message, and let them know who has contacted you, and ask them if they are happy for you to provide a verbal reference to that person. That way you can ensure that the situation is clear and covered and that you specifically have been given the authority to provide the reference.
Information reproduced with permission of Wolters Kluwer