Consequences of giving bad references about a former employee

Fine for giving bad references. The Social Court of the TSJ of Madrid has sentenced a company to immediately cease giving bad references about a former employee to third companies interested in hiring her, as well as to pay a compensation of more than €6,000. 

The worker, after being dismissed from her previous job, participated in several selection processes of different companies, reaching the final stage in some of them.


Fine for giving bad references about a former employee

The managers of these companies contacted the HR Director of the employee’s former company to ask for references about her.

One of them is informed that the employment relationship with her was, in principle, correct. However, in the words of the HR Director himself: “At the time we made her permanent, she became pregnant”. 

He also added that the employee was on medical leave for a long time, and that she had problems with her coworkers, ending up in court. 

As a consequence, when the worker contacted the managers of these companies, they informed her that they did not select her to fill the vacancies.

This was because of the bad references that the HR Director of her former company had given them about her.


Confusion between professional information and personal opinion

The Social Court of the TSJ of Madrid has declared the radical nullity of the acts committed by the former company of the former employee. They consist of providing negative information about her to the companies that intended to hire her, since she matched the profiles offered by both of them. 

Furthermore, principle of freedom of information and the principle of freedom of expression come into play. The worker, by sending her CV to the companies, is handing over her personal data. 

When a worker’s CV contains information about the companies in which he/she has previously worked, it is understood that the purpose of the new companies interested is to know the previous trajectory, work experience and professional value.

The employee implicitly authorizes these companies to contact those in which he/she has worked. In this manner, they can compare the information contained in the CV and exchange information about the employee.

In this case, this information exceeded the established legal limits. The HR Director not only issued information about the employment relationship that the company had with the worker. It also expressed his personal opinion about it.

He mentioned her maternity as a negative cause affecting her work performance, as well as the poor relationship she had with her coworkers and the long duration of her medical leave.

This is considered, therefore, an unlawful conduct that directly affects the integrity and the right to effective judicial protection of the worker. She was not able to participate in the telephone conversation in order to defend herself.


Decision of the TSJ in STC 608/2022

As a result, the TSJ of Madrid has ordered the worker’s former employer to pay compensation in excess of €6,000.

However, the TSJ rejected the worker’s claim to receive compensation valued at the salaries she ceased to receive when the companies in question did not hire her. This decision was made by these companies, and not by the defendant company.


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