Liability For False Work References -Think Twice Before Recommending A Work Colleague On LinkedIn

Author:Ms Valeria Gumuchdjian
Profession:Rihm Attorneys
 
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An employer in Switzerland is obliged to write his employee a reference in a manner that he can obtain a new work position. The employer may thereby be liable for any false and overly negative work references that harms the employee's search.

In April 1975, the Swiss Federal Court ruled on a bank director having embezzled a noticeable amount of money from the bank, whereupon the bank dismissed him and issued a certificate of employment attesting that the employee worked to the company's fully satisfaction and recommending him in good faith whilst concealing the embezzlement committed.

Shortly thereafter, the dismissed employee misappropriated at the next job an even larger amount of money and was sentenced to four years' imprisonment.

The new employer enforced in court that the preceding employer issuing the said reference was liable for the financial loss. Even if the employment relationship's duration can affect the employer in his reference for the employee, he should always stick to the principle of duty to truthfulness. An employer who issues a favourable certificate of employment and thereby conceals work relevant information may be therefore held liable forgery of certificates. The new employer can trust the refences the old employer gave him and is to be protected due to his good faith.

Therefore, an employer must be aware of his potential liability for false positive testimonies and any exaggerated negative references. If the employee has no chance to find a new position because of such negative references, the employer might be obliged to compensate for the damage incurred by the employee.

The crux of liability lies in the causality between work references and receiving or not being chosen for the employment which is difficult to prove, because the reference is only one of many selection criteria.

Guidelines for writing a work reference

In order to avoid such labilities, an employer has to make sure that the reference he submits is true. A reference is considered to be true, if the content of the reference can be attested from an objective point of view.

The given reference should not unnecessarily affect the employee's chances for a new employment. Therefore, negative facts must be mentioned only if they are relevant to the overall assessment. In particular, one-time rather minor failures should be omitted.

In general, the employer has...

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