What You Need To Know About Reference Checks

You’ve submitted your CV, nailed the interview, met the fantastic team you’ll potentially be working with and now there are just two little words standing between you and your dream job – “reference check”. 

For many employers the reference check is an integral part of the recruitment process and has the potential to make or break your application; so you’ll want to be sure your referee’s are going to make you look good and not jeopardise your chances of landing the job. 

From an employer’s perspective it’s all about minimising the risk of hiring an unsuitable candidate so for many it’s an opportunity to ask pertinent questions to determine if everything they’ve seen and heard so far stacks up.

There are also those employers however who believe that conducting reference check are a waste of time.  This may, in part, be due to the belief that a savvy job seeker is unlikely to provide contact details for someone who will give them a bad reference.  It’s also true that reference checks are simply more complex these days with organisations becoming more and more cautious of what they say about their former or current employees due to the potential for a legal defamation case.

The subject of references can certainly be a little tricky so as a job seeker what are the legalities around this process that you need to be aware of?

Does An Employer Have To Give You A Reference?

Actually no, legally there is no requirement under New Zealand law for an employer to provide a detailed reference for their existing or former staff members.  It’s completely up to them and there is increasingly a shift towards providing a bare facts reference which will essentially just confirm how long you were with the organisation and in what capacity as a way of protecting themselves against any  potential law suits.

Can A Potential Employer Contact Your Current Or Ex-Employer Without Your Consent?

Absolutely not. Under the Privacy Act a prospective employer needs the candidate’s consent to access any information from a third party including references.  Typically the names of two referees will be asked for at interview stage and often you will be asked to provide these details in writing on an application form.  Most organisations prefer to speak to the person you reported to.  

Now while it is possible there may be some employers who will attempt to do an “unofficial reference” on you, they’re not actually able to base any hiring decisions on this information.  Just be aware that if an employer wants to conduct a reference check with someone other than those referees you have nominated, they will need to request your permission to do so.  If they don’t this could be considered an invasion of your privacy.

Can An Ex-Employer Give You A Bad Reference?

Legally speaking yes, an employer can give you a bad reference as long as it’s accurate and they can substantiate it.   So be careful who you choose to be your referee.  I’ve often been surprised when conducting reference checks at the negative comments I’ve received relating to a candidate’s skills and performance on the job.  If you think your former manager is unlikely to say anything positive and you’ve got no one else who can act as your referee then consider being honest and upfront with the recruiter and warn them that the reference may not be glowing.  This may help to limit the damage if you can put some context around this.

Do You Have A Right To See Your Reference?

There is nothing to stop you from asking to see your references, however under the Privacy Act 1993 if the referee has asked for confidentiality the employer is under no obligation to disclose them to you.

What Can You Do If An Employer Gives You A Bad Reference?

Like I said the employer is obliged to provide a reference that is accurate, so if you believe that the reference they’ve provided is unfair there is the potential for you to take legal action, particularly if the reference has caused you to miss out on a new job.   But consider this if your ex-employer provides you with a glowing reference when your performance has been less than impressive then they’re also at risk of being sued by your new employer for giving a false reference if you continue to perform poorly and this damages your new employer in some way. 

So think twice before you go down this road.  You need to seriously consider how misleading the reference actually is.  Can you actually dispute the claims or are they true?  Remember if the employer can substantiate their comments you’ve got no case.