Work references play a significant role in the hiring process of a new employee. Under Swiss law, each employee is entitled to an interim and/or a final job reference which describes the nature and the duration of the employment relationship, the quality of the employee's work and his or her conduct.
Information which must appear in a work reference includes:
- Job title;
- Name and address of the employer;
- Name and date of birth of the employee;
- Place and date of the work reference;
- Nature and duration of the employment;
- Performance of the employee in qualitative and quantitative terms;
- Behaviour of the employee in the work place towards colleagues, supervisors and clients;
- Reason for termination of the employment relationship; and
- Employer's signature.
Legal risks of inaccurate job references
A potential new employer's recruitment decision often depends, at least to a certain extent, on the references of previous employers. As a result, the employers' and the employees' interest in the contents of the work reference are not always without conflict. Whilst the employee wishes to obtain a good reference, a potential new employer is only interested to learn about the true strengths and weaknesses of a job applicant.
In an attempt to balance out the conflicting interests, Swiss law requires a work reference to be both benevolent and true.
Examples in Swiss case law demonstrate that a former employer who issues an inaccurate work reference may be held liable by either the employee or a new employer. Moreover, an untrue work reference may qualify as a criminal offence.
How to limit the legal risks
- Every fact mentioned in a job reference (e.g. duration of the employment, job title) must be true and, ideally, the employer should be able to submit evidence in the event of a dispute.
- As a general rule, the language used in a work reference should be clear and transparent.
- Subjective assessments, for example concerning the behaviour or the personal achievements of an employee, must be appropriate and based on sufficient and correct facts and evidence.
- Any attempt to create a false impression of the employee's performance, tasks or behaviour should be avoided.
- Information without any relevancy for the overall assessment of the employee should not be mentioned. However, an offence committed by an employee which may be repeated at a future work place should be referred to in the work reference.