Quite recently I was approached by a staff of one of the second generation banks in Nigeria, seeking for my professional advice concerning the denial by her erstwhile employer to issue her with a letter of reference which she needed to finalize a new employment deal with another bank. She had approached the Head of HR of her former bank after submitting a resignation letter over one month through her branch head to which she received an acknowledgment.

When asked for the reasons given by HR Department for their refusal she claimed to have been informed that the bank does not have any obligation to issue such a letter since she is no longer in their employment and that the acknowledgment letter sent to her via her private mailbox should be taken as final correspondence with her from the bank.

With the above scenario, I was prompted, therefore, in this article to answer the question whether an employee has a legal right to demand a reference from a former employer. Also, the above situation has brought under scrutiny the relationship between the employers and their former employees vis-a -vis the place of the Nigerian labour law.

Traditionally the employers have been favoured and given the upper hand in employer/employees relationships by convention, practices and economic circumstances. With the high rate of unemployment in Nigeria, the employers are incredibly placed at an advantage and they often determine the direction of the contract and working relationships. It is a case of take-it-or-leave-it. With minimal regards for the law governing employment practices. The employers are often erroneously at liberty to impose conditions and certain restriction on the contract. For examples most bank staff are prohibited from joining the union (though unwritten), some bank doesnt pay their staff gratuity upon exit from service, they are asked to go at will by simply denying them access to the work system.

WHAT IS A LETTER OF REFERENCE?

A reference letter is an interpretation, evaluation or an assessment of a person or employee capabilities, qualities or characteristics based on records of employment and knowledge of such a person acquired in the course of employment with an organization.

In my definition, I have deliberately avoided the use of the word recommendation because it carries much deeper meaning and implications. The word recommendation is sometimes and in most cases interchange with reference, however, because of its legal implication which connotes that the referrer is attesting to the ability of a person to perform a particular task.

By implication, when you make a recommendation you are vouching for the ability of an individual to deliver result based on previous work performances.

WHAT IS THE POSITION OF THE NIGERIAN LABOUR LAW ON THE ISSUANCE OF REFERENCE LETTER

The duties of an employer and employee are taken care of under contract and statute. Also, there are certain common law duties, which the courts, over the years have recognized and upheld as attaching responsibilities to both the employer and employee. Having stated this, it important to state here that except the contract of employment specifically provides for such duty, generally speaking, the Nigerian Labour law and common law does not include the duty to provide a reference letter to an ex-employee as one of the duties of an employer.

EXPERT OPINIONS

O. Oguniyi in Nigerian Labour and Employment Law in Perspective 2004 states on page 85 that strictly speaking, there is no obligation on an employer to supply character references

Corroborating this, E.E. Uvieghara in Labour Law in Nigeria (2001) at page 35 states that: there is no legal duty on an employer to provide an employee with a testimonial of character or to answer question from interested parties concerning an employees character.

PERSPECTIVES FROM OTHER COUNTRIES

New Zealand

In her article titled Raising the Bar, Women in Law and Business Natalya King, states that Under the Employment Relations Act 2000, an employer must provide an employee with reasons for a dismissal if requested by the employee, so long as the request is made within 60 days of the date of dismissal. The statement must be provided within 14 days of receiving the request

She went further to states that, there is no requirement on an employer to provide a reference for an employee unless theyve agreed to, for example in the employment agreement or as part of a settlement (e.g. following a personal grievance for dismissal).

Some employers avoid giving references, and prefer to only provide a statement of employment (the basic facts), because they are worried about a claim of defamation (by the employee) if they say anything negative and a claim of negligence (by the new employer) if the employee doesnt live up to any positive comments made.

THE UNITED KINGDOM

In the U.K. there seems to be an implied term based on judicial pronouncements requesting an employer to give reference letter to an ex-employee within a reasonable time frame when certain key conditions are satisfied:

• I. Where there was a contract of employment or services
• II. Where the contract relates to an engagement of a class where it is normal practice to require a reference from a previous employer before employment is offered and
• III. Where the employee cannot be expected to enter into that class of employment except on a basis that the previous employer will, within a reasonable time, provide full and frank reference
Laying this precedent in the U.K. law was the case of Spring V. Guardian Assurance Plc (1994) 3 ALL ER 129. In this case, Spring a sales Director who Guardian Assurance dismissed following reorganization exercise in the company sought for employment with Scottish Amicable, another Insurance firm.

However, under the rule of the insurance company in the U.K. the regulatory (LAUTRO) body provides that an Insurance company could not appoint anyone to act as a company representative without obtaining a reference about the persons character and experience from a previous employer.

Based on the above, Spring approached Guardian Assurance Plc for a letter of reference. The company issued a letter in which it was written that Spring was a man of little or no integrity and could not be regarded as honest he consistently kept the best leads to himself with little regard for the sales team that he supposedly was to manage he left the company owing some £12,000.00 in funding which to date has not been repaid Spring was denied the job and two other subsequent opportunities to secure employment.

He consequently brought an action against Guardian Assurance Plc suing for malicious falsehood, breach of contract and negligence.

In its ruling, the House of Lords held by 4-1 that Guardian Insurance owed the plaintiff a duty of care in tort and it further held that “Where the relationship between the parties is that of employer and employee, the duty of care could be expressed as arising from an implied term of the contract of employment.”

The Court found that the reference was inaccurate and it was held that an employer who supplies an inaccurate reference can be liable in negligence to the person for whom it was supplied
EUROPE

While organizations are not under obligation to provide employment reference letters in Europe, it is, however important to states that German, Austria, Switzerland, and Bulgaria are the only countries in Europe with legal requirements for such claim. In these countries, employees can legally claim an employment reference. In Germany and Switzerland, it is called Arbeitszeugnis while it is called Dienstzeugnis in Austria.

DUTY OF CARE VIS A VIS EMPLOYMENT REFERENCE IN NIGERIA

The business Dictionary defines the duty of care as the responsibility or the legal obligation of a person or organization to avoid acts or omissions which can be reasonably foreseen to be likely to cause harm to others.

In communicating employment reference, it is important for HR practitioners to note that they have the dual responsibility of care to their former employee and as well to the organization requesting for such reference for decisional purposes. As such they have a moral obligation to offer an honest and unambiguous appraisal of the employees.

This becomes necessary in view of the numerous cases of dishonesty and integrity issues with employees and the need to protect nationals wealth from being plundered by the few dishonest ones in society.

This was further alluded to in an unreported case of Ayoola v. Olajire (1977) 3 CCHCCJ 375, Dosumu J. stated thus: It is so manifestly for the advantage of society that those who are about to employ a servant should be enabled to learn what his previous conduct has been that it may be deemed a moral duty of the former employer to answer enquiries to the best of his belief. Such privilege is only destroyed by proof of express malice.

Aligning to this thought is the opinion given by Eric CJ in the old case of Whiteley v. Adams ( 1863 ) 15 CBNS 392 at 418, where he stated that it is to the general interest of society that correct information should be obtained as to the character of persons in whom others have an interest. If every word which is uttered to discredit of another is to be the grounds for an action, cautious persons will take care that all their words are words of praise only, and will cease to obey the dictates of truth

The point here is that utmost care must be taken when issuing a letter of reference, if you decide to give it, truth and honest assessment must be a watchword.

Stephen Cross in Careless Words Cost Jobs ( Thomas, Labour and European Review, Issue 63, October 2001), note that as a result of decisions , in the case of Cox and those preceding it, employers Lawyers are advising their clients on how to limit the risk of liability for the provision of references. This would include refusing to give a reference altogether or limiting any reference to purely factual matters including dates of employment and job title, and not character attestation.

He further advised that disclaimer in reference should be considered while giving such letter of references.

My point here is that it is absolutely not illegal to give a truthful reference for an ex-employee, but you should be careful about dragging your organization into law cases and unnecessary litigation over an ex-employee that should not be your headache, after all, he or she is no longer in your employment. The best you can do it to issue basic information about the ex-staff.

WRITING A LEGALLY DEFENSIBLE REFERENCE LETTER

Some of the signposts of a badly managed HR functions are the frequencies of industrial crises, high rate of staff turnover and litigation resulting from decisions taken in the organization. HR in the 21st century properly define is a middle-of-the-road- bridge between employer and the employee.

A well-trained HR practitioner understands the need to protect all parties in the employment relationships in such a way that the corporate and employees objectives are realized in an atmosphere of peace, smooth operation, unhindered workflow, justice, and equity.

Speaking directly to best practices and procedural guideline in designing a legally defensible reference letter, HR must take care of the often neglected recruitment processes. This implies an appropriate job design process, job analysis, determination of role, job description and persons specification.

For you to justify your opinion of an individual, some basic evaluative criteria must be set and agreed to by both parties with a regular appraisal system. Record keeping is very important such that disciplinary actions, warning and performance reports are kept and duly documented for reference purposes.

I have previously worked for an organization in Port Harcourt, Rivers States in Nigeria, where I took a decision with the consent of the management, this resulted in the sack of a senior staff who subsequently took the organization to court for wrongful dismissal but because we had records of previous actions taken on the staff for similar offences the case was out rightly dismissed by the trial judge.

The absence of employees record and actions that were taken in contravention of the law/employment agreement are some of the reasons why organizations lose employment-related cases.

It is also important to states that referencing an ex-employee should be seen as a collaborative work between the staff immediate supervisor and the Human Resource Department. HR must design a form aimed at receiving input from the staff immediate supervisor with strict adherence to objectivity and truthfulness. I have seen organizations, where an ex-employee would by-pass HR and work straight to a more senior officer of the organization and sometimes the managing Director to obtain a letter of reference, this is an aberration with consequential risk and exposure to litigation and court cases.

THE HIDDEN TRUTH ABOUT EMPLOYEES REFERENCE

I will quote the statements of Daniel Schwartz of Shipman and Goodwin LLP, Here’s what happens in real life: For “good” employees, employers give recommendations. For “bad” employees, they say that they can just confirm dates of service and titles. There’s a wink and a nod, and everyone is supposed to understand the code.

I think this should also be taken as a lesson for workers and employees, if you want to be respected and honored even after exiting from an organization give your very best, it is all about good performance record, attitude, and contribution to the growth of the organization. I have worked with some individuals in the past for which if I am called upon today to give a reference I will do it without blinking an eye.

Having said this, I think it is also important to say that while it is good and natural to want to write something positive about your good ex-workers, and provide just basic information about the not-too-good you must also be aware that an employee who does not receive a positive reference can sue your organization for discrimination or claim retaliation.

So the rule of thumb is to have a well define policy on this. I have seen where it is contained in contract of employment upon exit, we only issue out basic employment information about our ex-employee except if a much detailed information is compelled by a competent court of law

PROCEDURE FOR WRITING AN EMPLOYMENT REFERENCE LETTER

• A formal request must be written by the person seeking the reference be it an employee or a private organization seeking the services of your former employee
• Direct your response to the person who requested the information
• Avoid using vague statement and try to be as factual as possible
• When writing to whom it may concern reference, state clearly in the body of the letter that the job applicant takes responsibility for disseminating the letter to the proper person
• Avoid giving your personal opinions or feelings. Avoid making subjective statement and if you do say that they are your personal opinion
• Ensure that you relate the letter to the job that is being applied for
• Document all the information that you made about an ex-employee
• Never forget to state in the letter, This information is confidential and should be treated as such, and it is provided at the request of ( Name of Applicant)
• Include a disclaimer.

CONCLUSION

From the foregoing, we have seen that it is not legally mandatory that an employer should issue employment reference to a former employee, however, based on practice and duty of care an organization is at liberty to do so. One option is to refuse, as a matter of policy, to give references for any employee – you are not under any obligation to do so unless the contract of employment openly states that you would. However, care must be taken if you have to give such a reference because of its legal implications.

As a precaution, care must be taken at ensuring that the information given is factual, based on documented employment history, legally defensible and within the limit of the contract of employment. At best you can issue reference based on basic employment history as against a full reference statement.

References

1. E.E. Uvieghara in Labour Law in Nigeria (2001)
2. O. Oguniyi in Nigerian Labour and Employment Law in Perspective 2004
3. Natlya King Raising the Bar, Women in Law and Business
4. Stephen Cross in Careless Words Cost Jobs (Thomas, Labour and European Review, Issue 63, October 2001),
5. Online Business Dictionary
6. Reed Smith LLP
7. Wikipedia

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