Giving a Reference: A Balancing Act
Writing a reference or providing a verbal reference for a past employee should be straightforward. But what if the person didn’t perform well in their role? What if you’ve had to manage multiple performance conversations or even let them go? In these situations, giving a reference can feel like a tightrope walk between honesty, fairness, and preserving your own reputation.
In this article, we’ll guide you through the dos and don’ts of providing references for poor performers, helping you respond fairly.
The Legal Basics
Let’s start with the essentials. In New Zealand, there’s no legal obligation to provide a reference. That said, many employers do so out of courtesy or to help someone move on. If you choose to provide one, the key is to be fair, accurate, and not misleading.
Under the Employment Relations Act 2000, employers must act in good faith, including after employment ends. That means not making statements that unfairly harm a former employee’s job prospects. It also means following the principles of the Privacy Act 2020, particularly when handling personal information like employment history or performance details.
While legal action over references is rare in practice, it’s still important to get it right. A misleading or unfair reference could risk a defamation or privacy-related complaint in extreme cases, especially if it’s inaccurate or shared without consent.So even if you parted ways on bad terms, it’s important to stay professional and stick to the facts. To avoid unnecessary risk, many businesses lean on HR consultancy services to guide their approach.
Do’s and Don’ts for Referees
DO: Stick to Facts, Not Feelings
A good reference is based on observable behaviour and performance outcomes, not personal feelings or vague impressions. Instead of saying “they were difficult to manage,” try “we had regular performance discussions regarding timeliness and meeting deliverables.”
DON’T: Gloss Over Genuine Concerns
You don’t need to pretend there were no issues, but you do need to present them constructively. For example:
- “They performed best with structured guidance and clear expectations.”
- “We identified some development areas around communication and teamwork during their time with us.”
This language keeps things accurate without sounding personal or inflammatory.
DO: Be Clear About Who You're Representing
If you’re giving a reference in a personal capacity, not as a company representative, say so up front. Avoid using company letterhead, email addresses, or other branding when providing personal feedback. Unless you’re authorised to speak on behalf of the business, clarify that the views expressed are your own.
This distinction protects both you and your employer from the risk of misrepresentation.
DON’T: Disclose Without Consent
Always check that the former employee has consented to you sharing their information. Under the Privacy Act 2020, you need to ensure the reference request is legitimate, the information is accurate and up to date, and that you’re not disclosing anything they wouldn’t reasonably expect.
If in doubt, ask the former employee directly what they’re comfortable with you sharing.
DO: Be Cautious About Salary Questions
If you’re asked to comment on someone’s previous salary, be careful. Unless you’ve been given explicit consent to share this information, it’s safer to decline or redirect the question. You could say: “I’m not authorised to disclose their previous salary, but I can confirm their job title and broad responsibilities if that’s helpful.”
This keeps you on safe legal ground and avoids sharing sensitive data that could later be challenged.
DON’T: Feel Obligated to Say Yes
You’re within your rights to decline a reference, especially if you feel uncomfortable or unsure about what to say. A simple, “I don’t believe I’m the best person to provide a reference in this instance,” is perfectly acceptable.
Consistency is key here, avoid making exceptions that could appear biased.
Consider Setting a Reference Policy
Many businesses choose to formalise their approach to references through a simple internal policy. This is especially useful for managing risk, maintaining consistency, and supporting managers who may be unsure how to respond.
Two common approaches include:
- All written references are handled by HR. These are typically limited to a Certificate of Service, which confirms dates of employment and role title. This avoids the risk of subjective commentary and ensures that only authorised and trained people are disclosing information in writing.
- Verbal references are permitted, but only in a personal capacity. If a former manager wishes to provide a reference, they must clarify that they are speaking as an individual, not on behalf of the company. They should avoid using company emails or other identifiers and ensure their comments are fair, factual, and not based on hearsay.
If you need help developing this kind of framework, our HR Policy and Compliance services can support you with tailored documentation and best practice guidance.
What to Say (or Not Say)
Here are some practical ways to phrase your feedback honestly but constructively:
If You Want to Say… | Try Saying… |
“They were a nightmare to manage.” | “They required a high level of support to meet expectations.” |
“They weren’t a team player.” | “They tended to work independently and needed reminders to collaborate with others.” |
“They got fired.” | “Their employment ended after we were unable to resolve performance concerns through our usual process.” |
“They always showed up late.” | “There were some challenges with punctuality that we addressed during their time here.” |
‘’Would you hire them again?’’ | It would depend on the role, OR not in this role, OR simply No. you don’t need to expand on this further, the rest of the reference if you have been fair and balanced will ensure this is clear. |
Ask yourself: would you be happy to stand by this statement if the employee requested a copy of the reference? If not, revise it.
When in Doubt, Keep It Minimal
A simple confirmation of role, dates of employment, and general responsibilities is often enough. This is especially useful in tricky exits, where more detail could create legal or reputational risk.
If your business doesn’t already have a reference policy, it may be time to create one. It helps everyone navigate these requests with confidence and clarity.
Final Word: Stay Fair and Balanced
Giving a reference for someone who underperformed is never easy. But with the right approach, you can be honest without being harmful. Keep things factual, maintain professional boundaries, and always act in a way that reflects well on your business.
If you’re unsure how to respond to a reference request, or you’d like support creating a formal policy, we’re here to help with expert HR and consulting advice.