An employee, a teacher, has listed his former employer as a referent. The potential new employer contacts this referent and is told, among other things, that "there are issues around teaching that need attention" and "there are reports from students about not feeling safe and being anxious about 1-on-1 situations. The school to which the employee applied then decides not to hire the employee. The employee holds the referent liable for damages.
On August 21, 2018, the Arnhem-Leeuwarden Court of Appeal ruled that the starting point is that if an applicant in a job application procedure designates his former employer as a referent, he thereby gives permission (within the meaning of Article 6(1)(a) of the AVG) to provide information about his person and about his performance to another person. This information can be either positive or negative for the person in question. According to the Court, if an applicant wishes to exclude certain negative information from the reference about his person or functioning, he should explicitly indicate this to the referent. The referent can then weigh up whether he still wants to issue a reference. After all, as a former employer, he will have to provide a correct picture of the person concerned to the potential employer. Withholding information may constitute carelessness and thus liability for damages to the potential employer.
If a referent decides to provide references, it does not mean that he may then tell everything about the former employee. The referent may only provide information that is relevant to the job applicant's performance. The answer to the question of whether there is relevant information will depend, among other things, on the content of the questions asked by the potential employer, the seriousness of certain behaviors (such as misconduct), the nature of the position, the interests of third parties involved, the passage of time after certain negative events have occurred, and any improvement shown.
In this case, the Court found that the referent was allowed to pass on the incriminating information about the ex-employee and thus had not acted unlawfully nor in violation of the AVG. Among other things, it considered that students should be protected from possible unwanted behavior by teachers.
So in this case, things ended well for the school that had provided the references. However, the case makes it clear once again that care must be taken when providing references. Consideration must be given to what information is necessary and therefore important to the ex-employee's performance, but a truthful picture must also be provided. In addition, it may also be the case that in an agreement to terminate the employment contract between the ex-employee and the ex-employer, it has been agreed that the parties will not speak negatively about each other to third parties or that positive or neutral references will be provided. In that case, if negative references are provided for the ex-employee, the agreement is breached.
If you are approached for references, it is wise not to provide those references immediately but first determine what information can be shared. Sometimes you may not even know you are listed as a reference and may be caught off guard by a request (over the phone) from a potential employer. Do not be tempted to provide information directly in the phone call. This is of course different if you can only speak in positive terms about the employee, but if you are not (entirely) positive about the ex-employee, you would be wise to ask the potential employer to email the request for references and the specific questions, and possibly ask the ex-employee if it is true that you have been listed as a referee, so that careful consideration can then be made.
This article can also be found in the files Privacy in the workplace and AVG
