Does the employee have influence over reference inquiries?

Reference inquiries are important in the application process. Unlike motivation letters, resumes, and job interviews, the employee has very limited influence over the content of the reference report, as it is provided by a third party.

a. General Overview

In reference inquiries, a former employer provides information to a potential new employer when there are follow-up questions. The reference report serves, in a sense, as an oral employment reference. The process of obtaining and providing reference reports involves data processing, and thus Articles 328b of the Swiss Code of Obligations (CO) and the Federal Data Protection Act apply. This means that reference inquiries may only be made and provided with the express consent of the employee.

b. Consent to Reference Inquiries

The provision of a reference report therefore requires the express consent of the employee. The designation of a former employer in the application documents, for example under the title "References," is considered as such consent to a reference inquiry, whereas merely listing the former employer in the resume as part of previous employment activities does not constitute consent. Including certificates in the application dossier also does not count as consent for reference inquiries.

According to jurisprudence and prevailing doctrine, individual references that do not concern particularly sensitive personal data and do not aggregate into a personality profile may be provided without the employee's consent. However, such individual references are also impermissible if the employee has expressly prohibited them.

Typically, the employee will already provide references with their application documents or upon direct inquiry from the potential new employer. However, the former employer is often not contacted for permission to provide references. In such cases, the former employer must first either ask the employee whether they are allowed to provide a reference or require the potential new employer to present a corresponding declaration from the employee (e.g., reference list). The former employer should not rely solely on the verbal assurance of the potential new employer.

c. Adherence to Reference Principles in Reference Reports

When a reference inquiry occurs, the oral information must comply with the principles of reference (clarity, truthfulness, goodwill, completeness, and individual assessment). It is paramount that the information provided is truthful and does not unnecessarily hinder the economic advancement of the employee. However, the employee does not have a right to a recommendation. The reference report may specify or supplement an issued employment reference, provided that the principles of reference are respected. However, the information must not contradict the issued employment reference!

d. Legal Consequences of Violations by the Former Employer

Several scenarios are conceivable: (1) The former employer provides a reference report without being authorized to do so; (2) they refuse to provide a desired reference report; or (3) the desired and provided reference report violates the principles of reference or contradicts the employment reference.

If the employee misses out on a job opportunity due to an incorrect or refused reference report, the former employer may be liable for damages due to breach of contract. Even if the employment contract with the former employer is no longer in effect, obligations arising from the previous employment contract persist beyond its termination. Damages may consist of lost wages or any difference between unemployment benefits and the lost or previous wages.

If the reference report violates the employee's personality rights, this may also lead to a claim for satisfaction, although such claims in Switzerland are generally expected to be in the low three- to four-digit range.

Criminal prosecution under Article 179novies of the Swiss Penal Code (unlawfully obtaining personal data) or under Article 34 of the Federal Data Protection Act may also be possible.

Under certain circumstances, a court injunction against a threatening reference report is also possible.

e. Legal Consequences of Violations by the Potential New Employer

In this scenario, it is particularly conceivable that the potential new employer obtains reference inquiries from former employers without the employee's consent.

In such a case, criminal prosecution under Article 179novies of the Swiss Penal Code (unlawfully obtaining personal data) or under Article 34 of the Federal Data Protection Act is likely.

While claims for damages against the potential new employer are not inherently excluded, such claims are unlikely to succeed as proving damages would be difficult.

f. Conclusion

The employee has significant influence over the issuance of a reference report, as their express consent is required.

Reference inquiries are generally unproblematic if the individual has a good relationship with the former employer and the departure was orderly. It is also conceivable to name a specific person as a reference who has a good relationship with the employee and is likely to provide a positive reference report.

If the employee is aware from the outset that a reference report is unlikely to be favorable, it makes sense to explicitly prohibit it. Instead, it may be wise to notify the former employer in advance that any reference inquiries must adhere to an existing employment reference and to remind them of the potential for claims for damages or satisfaction in the event that a reference report contradicts this.

For these reasons, it is essential to influence the adaptation of the employment reference if one does not agree with the assessment contained therein.

If a reference report does not meet expectations, the aforementioned legal options are available. The employee has informational claims against the former employer and the potential future employer based on contractual rights and obligations as well as data protection law, though it is unclear if this information will confirm what is desired. Therefore, the proof necessary to assert corresponding claims for damages is likely to be challenging. Consequently, the utility of these legal options primarily lies in their deterrent effect. It should be noted that a potential position will likely not be obtained if one cannot provide a reference or if a poor reference is given. This situation would not change if one takes legal action against the former employer or the potential future employer. Pursuing action against the former employer may be considered, particularly concerning future reference inquiries, due to the deterrent effect.

Given the above, when providing references, it is crucial to name a favorable person or, in case of doubt, to prohibit the reference report.

Lucerne, June 9, 2020
Simeon Beeler