What Employers Can And Can't Say In Work Reference Letters In NZ

When you're running a small business, it's normal to get pulled into the "people side" of things that bigger organisations hand off to HR. One of the most common (and surprisingly risky) requests you'll get is for a work reference.

It might feel like a quick favour for a former employee - but from an employer perspective, a work reference can create real legal exposure if it's inaccurate, unfair, or handled inconsistently.

The good news is that giving a helpful, professional work reference in New Zealand is absolutely doable. You just need a clear approach, the right permissions, and a good understanding of what you can (and can't) say.

Note: This article is general information only and isn't legal advice. If you're dealing with a sensitive exit or a potential dispute, it's a good idea to get specific advice for your situation.

Do Employers Have To Provide A Work Reference In New Zealand?

In most situations, you're not legally required to provide a reference letter for an employee in New Zealand.

There are a few exceptions and "watch outs", though:

• Your contract or policies might create an expectation (for example, if you've committed to providing an employment reference letter on request, or you have a practice of doing it for everyone).
• Some roles or industries may expect verification (for example, confirming dates of employment). Even then, this is typically a business decision rather than a strict legal obligation.
• Consistency matters. If you refuse a reference for one person but provide them for others, that can create friction - and in some cases, allegations that the refusal was discriminatory or retaliatory.

If you want to keep things simple, many small businesses adopt a "confirmation only" approach: you confirm objective details (job title, dates, and maybe duties), and avoid opinions. Another option is to provide a fuller employment reference letter - but only where you have enough information, and you're comfortable standing behind it.

Whichever approach you take, it's worth documenting it in a clear Workplace Policy so your managers aren't improvising under pressure.

What Employers Can Say In A Work Reference (Without Getting Burned)

A good work reference is usually one that's honest, fair, and based on facts. That sounds simple, but the risk often comes from casual statements made without checking records, or from emotionally-charged language after a difficult exit.

Here are the kinds of things employers can usually include safely, assuming they're accurate and you have a proper basis for saying them.

1. Objective Employment Details

• Dates of employment
• Job title(s)
• Employment type (full-time, part-time, casual)
• Primary duties or areas of responsibility

These are typically low-risk because they're verifiable.

2. Performance Information (If It's True And You Can Support It)

You can comment on performance, but you should be able to point to a reasonable basis for it, such as:

• documented performance reviews
• KPIs or measurable outputs
• training records
• written feedback (where appropriate)

If you can't support a claim with evidence, it doesn't mean you must stay silent - but it does mean you should be careful about how you frame it (for example, focusing on observable behaviour rather than conclusions about character).

3. Skills And Strengths (Keep It Work-Focused)

Safer reference letters for employees are usually the ones that stay grounded in the role, such as:

• communication skills with customers
• attention to detail
• ability to work under pressure
• reliability with rostering
• team leadership (if they supervised others)

4. Reason For Leaving (Sometimes)

This is where many references go wrong.

You can state the reason for leaving, but only if it's accurate and appropriate to disclose. In many cases, it's safer to keep it neutral (for example: "X resigned from the role on").

If someone was dismissed or a relationship ended badly, that doesn't automatically mean you should include it in an employment reference letter - particularly if the person didn't consent to that disclosure, or if the matter is disputed.

If the departure involved a formal process, it's a good idea to make sure your underlying documentation is solid (for example, having your Employee Termination Documents Suite in order) before you say anything that could inflame the situation.

What Employers Can't Say (Or Should Avoid Saying) In A Work Reference

There isn't one single "work reference law" in New Zealand. Instead, risk comes from several areas at once - including privacy, discrimination, and defamation.

As a rule of thumb: if you wouldn't be comfortable reading it out loud to the employee (or defending it in writing later), don't put it in a reference.

1. Don't Disclose Sensitive Personal Information

Under the Privacy Act 2020, you should take reasonable steps to protect personal information and only use/disclose it for appropriate purposes.

In a work reference context, avoid disclosing things like:

• medical information (including mental health, injuries, or diagnoses)
• disciplinary allegations that were never proven
• details about personal relationships, family situation, or finances
• passport/visa or work-entitlement details unless they are strictly necessary to answer the request and you're satisfied you have a lawful basis to share them

Even if you think you're "helping" by explaining context, you can easily over-share. A safer approach is to ask the employee what they consent to you sharing, and keep the reference focused on employment-related information. Keep in mind that consent isn't always required (or enough) under privacy law - so it's still important to only share what's relevant, accurate, and appropriate.

If your business collects and stores a lot of personal information, it's worth having a fit-for-purpose Privacy Policy and internal processes so your team knows what's appropriate to disclose (and what isn't).

2. Don't Include Discriminatory Comments (Even Indirect Ones)

The Human Rights Act 1993 prohibits discrimination on various grounds (such as sex, marital status, religious belief, ethical belief, colour, race, ethnic or national origins, disability, age, political opinion, employment status, family status, sexual orientation, and more).

A reference letter should not include comments like:

• "She's great, but as a mother she can be unreliable."
• "He struggles due to his anxiety."
• "At his age he isn't as quick with technology."

Even if you think you're being "honest", those types of statements can cause serious issues. If reliability or availability is genuinely relevant, focus on objective work facts (for example, "attendance met roster requirements" or "had X unscheduled absences recorded").

3. Don't Make Statements You Can't Prove (Defamation Risk)

If a reference contains damaging statements that can't be justified, you could be exposed to defamation risk.

This is particularly common with:

• accusations of theft or fraud
• claims that someone is "dangerous" or "unstable"
• statements that imply criminal conduct

If there was serious misconduct, it may be more appropriate to decline to provide a detailed reference (or provide a basic factual confirmation only) rather than include potentially defamatory statements.

4. Don't Mislead The Next Employer (Negligent Misstatement Risk)

There's another risk on the other side: giving a glowing work reference that you know is misleading.

For example, if you say someone was "excellent with customers and always calm" when you know you had repeated documented complaints about aggressive behaviour, the new employer may rely on your reference and later claim they suffered loss because they were misled.

This is why "neutral references" are so common - they reduce risk of both defamation (too negative) and negligent misstatement (too positive).

How To Handle A Work Reference Request In Your Small Business (Step-By-Step)

When you set a consistent process, references stop being stressful and start being routine.

Step 1: Decide Your Business? Reference Approach

Common approaches include:

• Confirmation-only: dates, title, and maybe duties.
• Standard short letter: confirmation details plus a brief general statement about work performance.
• Full reference letter for employee: a more detailed assessment (usually reserved for senior staff or long-term employees).

The right approach depends on your industry, your risk tolerance, and how confident you are in your documentation.

Step 2: Get Written Consent From The Employee

Before you provide a job reference letter (or even a phone reference), it's smart to get written consent from the employee confirming:

• who you can speak to (the person/company requesting the reference)
• what form it can take (written and/or verbal)
• whether you can discuss performance and conduct, or only confirm basics

This helps manage privacy risk and reduces misunderstandings.

Step 3: Check Your Records Before You Write Anything

It's easy to rely on memory - but memory is often what gets employers into trouble.

Before issuing a work reference, check:

• the signed Employment Contract (role title, duties, start date)
• performance reviews or documented feedback
• disciplinary records (if relevant and appropriate to disclose)
• the employee's end date and reason for leaving (as recorded)

If the reference is being handled by a manager who didn't supervise the employee, it's especially important to verify details first.

Step 4: Keep The Language Neutral And Work-Related

Good work references tend to be:

• short and factual
• free of personal commentary
• clearly scoped (what period you supervised them, what role you observed them in)

If you want to include opinions, frame them as opinions based on your experience (not as sweeping statements).

Step 5: Decide What To Do About Negative References

Sometimes you'll be asked for a reference for someone who:

• left during a performance management process
• was dismissed
• had ongoing conduct issues
• left on poor terms

You have options:

• Provide a confirmation-only reference (often the simplest path).
• Provide a balanced reference that sticks to provable facts and avoids emotive language.
• Decline to provide a reference (but do this consistently and carefully).

If you're worried about a dispute or a personal grievance, it's worth getting advice before you send anything in writing. In some exits, the terms of departure are documented in a Deed Of Settlement, and you'll want to make sure any reference you give aligns with what was agreed.

Written vs Verbal Work References: Which Is Safer?

Small business owners often ask whether it's safer to give a reference letter for an employee or to provide a quick phone reference.

Both have pros and cons.

Written References

Pros:

• You can control the wording.
• You can keep it consistent with your records.
• There's less risk of being misquoted.

Cons:

• It can be forwarded widely.
• It's a permanent record (which can be good or bad).

Verbal References

Pros:

• They can feel more natural and less formal.
• You can clarify questions in real time.

Cons:

• Higher risk of "off the cuff" comments you can't take back.
• Harder to prove exactly what was said if it's later disputed.

A practical middle-ground many small businesses use is:

• issue a short written work reference confirming the basics; and
• if you take a call, keep detailed file notes immediately after the conversation (date, who called, what was asked, and what you said).

Key Takeaways

• A work reference is not usually legally required in New Zealand, but you should handle requests consistently to reduce risk.
• You generally can provide factual information and reasonable, evidence-based comments about performance and duties.
• You generally shouldn't disclose sensitive personal information, discriminatory comments, unproven allegations, or anything you can't justify if challenged.
• Be careful of both extremes: overly negative references can create defamation risk, and overly positive references can create risk if the new employer relies on misleading information.
• Protect your business by using a consistent process, getting written consent, checking records, and keeping language neutral and work-focused.
• Putting your approach into a clear Workplace Policy can help managers respond consistently and professionally.

If you'd like help setting up a reference process, reviewing what you can safely say, or managing a tricky exit where a reference is likely to be requested, you can reach us at 0800 002 184 or team@sprintlaw.co.nz for a free, no-obligations chat.