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 employers the following pointers:

• In most instances, employers should hesitate to contact the new or potential employer of their own accord. If it seems necessary to do so, for instance due to the specifics of the sector or third-party interests, employers might first try to find out if it is possible to notify a regulatory authority or to obtain advice from a regulatory body.

• If a (potential) new employer asks for a reference, employers should attempt to verify whether the ex-employee has consented to this step and check whether providing references is justified or perhaps even obligatory for the position or industry at issue. If so, employers should limit themselves to giving the strictly necessary negative feedback.

• If there is no need to share negative feedback, refusing to provide a reference might be preferable than providing negative feedback. In that case, refer the (potential) new employer to the job applicant.

What about the potential employer?

The new employer, too, has to take care when requesting a reference. Last year, the District Court of The Hague (ECLI:NL:RBDHA:2019:6145) ruled that a university violated the law by requesting information about a job applicant from the previous employer without the job applicant’s knowledge or consent. By doing so, the university had acted contrary to the GDPR and the applicable recruitment codes.

A potential employer thus has to be mindful of the following:

• Prospective employers should hesitate to contact former employers that have not been listed by the job applicant as a reference, unless the job applicant has given their explicit consent.

• When requesting references, only inquire about information that is relevant to the position.

As the case law on this issue continues to evolve, Dutch employers should proceed carefully and contact counsel with any concerns.