What References Employers Can Give In New Zealand: Legal Obligations And Best Practice

This article is general information for New Zealand employers only and doesn’t take into account your specific situation. It isn’t legal advice. If you’re dealing with a sensitive reference request or a dispute risk, consider getting advice.

When you’re running a small business, it’s only a matter of time before you get the call (or email): “Hi, I’m doing reference checks for - can you answer a few questions?”

It sounds simple, but what references employers can legally provide in New Zealand isn’t just a matter of being helpful. A reference can create real legal risk if it’s inaccurate, unfair, discriminatory, or improperly shared.

The good news is that with a clear process and a consistent approach, you can give references confidently, protect your business, and still be fair to the person who worked for you.

Below, we’ll walk through what employers can say in references in NZ, the legal obligations you need to keep in mind, and the best-practice approach we recommend for small business employers.

What References Employers Can Give In NZ (And Why It Matters)

In NZ, there isn’t a single “reference law” that tells you exactly what to say. Instead, giving a reference touches multiple legal areas at once - and that’s where many businesses get tripped up.

At a practical level, employers usually provide references in one of these formats:

• Written reference letter (often requested by the employee or recruiter)
• Verbal reference (a phone call reference check)
• Confirmation of employment only (a neutral reference: role, dates, maybe duties)

What you can include generally falls into two buckets:

• Objective facts - job title, employment dates, typical responsibilities, whether they were full-time/part-time, reporting lines.
• Genuine opinions based on real experience - performance, reliability, skills, teamwork, conduct, and suitability for similar roles.

So why does this matter? Because a reference that’s careless or inconsistent can lead to:

• Privacy complaints
• Personal grievance risk (for example, claims linked to disadvantage or bad faith conduct)
• Defamation allegations (if you make damaging statements that can’t be justified)
• Reputational and hiring risk (future employers may stop trusting references from your business)

If your internal employment paperwork is messy or unclear, reference checks can also expose inconsistencies in how you managed performance, discipline, and exits - which is one reason it’s worth keeping your Employment Contract terms and HR processes tight from day one.

Key Legal Obligations When Giving Employee References In New Zealand

Even though reference checks feel informal, they sit in a legal environment. Here are the main legal obligations and risk areas NZ employers should keep front of mind.

Privacy Act 2020 (Personal Information And Consent)

A reference typically includes personal information about an identifiable individual - even if you’re “just chatting” to a recruiter.

In practice, this means you should:

• Check there’s a proper basis to share the information - most commonly, the employee has given consent by listing you as a referee or authorising the check, or it’s otherwise reasonable to expect you’ll be contacted for that purpose.
• Limit what you share to what’s relevant and reasonably necessary for the purpose (a reference check for employment).
• Avoid oversharing sensitive information (for example, medical issues, mental health information, family situation, protected characteristics).

Many businesses also use a consistent privacy approach across HR and customer data, and that’s where having a clear Privacy Policy and internal privacy practices helps set expectations about how information is handled.

Employment Relations Act 2000 (Good Faith And Fair Process)

The duty of good faith under the Employment Relations Act 2000 is broad and applies to the employment relationship, including (in some circumstances) matters that arise after employment ends if they are connected to the employment relationship. While it’s most commonly discussed during active employment (disciplinary processes, restructures, etc.), employers should still be mindful that a reference can be scrutinised if it appears retaliatory, misleading, or unfair.

As a best practice, treat references as an extension of your professional employment practices:

• Be honest
• Be fair
• Don’t act with an ulterior motive
• Don’t surprise the employee with serious allegations raised for the first time in a reference

Human Rights Act 1993 (Avoid Discrimination)

You should never include discriminatory content in a reference. This includes comments that relate to protected characteristics (for example, sex, marital status, religious belief, disability, age, race/ethnicity, sexual orientation).

Even if you think you’re being “helpful”, comments like “she’s great but might have more children soon” or “he’s older and not as fast with technology” can create serious risk.

This sits alongside broader hiring risks - for example, avoiding illegal interview questions in your own recruitment process for similar reasons.

Defamation And Negligent Misstatement (Accuracy Matters)

If you make a statement that harms someone’s reputation and it’s not defensible, you may face defamation risk. Separately, if you give information carelessly and it causes someone else to suffer loss, there may be risk around negligent misstatement.

You don’t need to be frightened of giving references - you just need to be disciplined about:

• Sticking to what you know (first-hand experience)
• Avoiding rumours and assumptions
• Checking your records before making claims about warnings, performance issues, or misconduct

What References Employers Should Avoid Saying (Common Traps For Small Businesses)

If you’re trying to work out what references employers should avoid, the simplest rule is: don’t share information that you can’t justify, shouldn’t disclose, or that isn’t relevant.

Here are the most common traps we see.

1) Sharing Health Or Medical Information

Even if you believe it affected attendance or performance, health information is highly sensitive. If attendance is relevant, focus on factual attendance and reliability rather than diagnoses or personal details.

2) Mentioning Protected Characteristics Or Personal Life

A reference is not the place for commentary on:

• Pregnancy or plans for children
• Relationship status
• Religion or political opinions
• Disability (including perceived disability)

3) Going Beyond Your Direct Knowledge

“I heard…” is where references go to die. If you weren’t the direct manager, be careful. You can say what you personally observed or refer the recruiter to the correct person.

4) Surprising The Employee With Serious Allegations

If you never raised an issue during employment (no warnings, no documented performance process) but then mention major problems in a reference, it can look retaliatory or unfair.

This is one reason performance management should be handled properly at the time - and why, when an employment relationship ends, having the right employee termination documents can reduce the “loose ends” that later surface during reference checks.

5) Breaching Confidentiality Or Sharing Client/Business-Sensitive Details

References shouldn’t disclose confidential business information, client information, or internal disputes. This also ties into the broader need to protect confidential information in your workplace, including through well-drafted Confidentiality Clause terms and practical confidentiality expectations.

Best Practice Process: How To Give References Safely And Consistently

For small business owners, the biggest risk isn’t usually one “bad reference” - it’s inconsistent, rushed references given by different people in different ways, with no record of what was said.

Here’s a straightforward best-practice process you can adopt.

Step 1: Decide Your Business Policy (Neutral Vs Detailed References)

First, decide what your business will do as a default. Common options include:

• Neutral reference policy: confirm job title, dates of employment, and (optionally) final position and main duties.
• Manager reference policy: allow direct managers to give a factual and performance-based reference, using a set checklist.
• HR/Owner only policy: one nominated person gives all references to ensure consistency.

There’s no “one right answer”. A neutral reference policy lowers risk and admin time, and is often a good fit for smaller teams without formal HR.

If you take the more detailed approach, make sure you have a clear internal rule about who can provide references and what must be checked first.

Step 2: Confirm Consent And Identity

Before you say anything:

• Confirm the caller/emailer is who they say they are (recruiter, hiring manager, HR).
• Confirm the former employee has authorised you to provide a reference (for example, by naming you as a referee or confirming they’ve consented to checks).
• If you’re unsure, ask for the request in writing and/or ask the candidate to confirm consent by email.

Step 3: Use A Reference Checklist (Keep It Factual And Structured)

If you’re giving more than a neutral reference, use a consistent set of questions so you don’t accidentally drift into unsafe territory.

Common “safer” reference topics include:

• Role and responsibilities
• Employment dates and nature of employment (casual/part-time/full-time)
• Key strengths (with examples)
• Areas for development (kept professional and job-related)
• Reliability and attendance (factual, not speculative)
• Teamwork and communication (based on observed behaviour)
• Reason for leaving (only if you’re comfortable it’s accurate and appropriate)

If a question invites you to speculate (for example, “Do you think they’re trustworthy?”), bring it back to specific behaviours you observed.

Step 4: Check Your Records Before Mentioning Performance Or Misconduct

If you plan to mention warnings, misconduct, or performance issues, it’s worth taking a pause and checking:

• Were the issues documented?
• Was the employee notified of the concerns at the time?
• Was there a clear outcome or resolution?
• Is it fair and relevant to the role they’re applying for?

Sometimes employers want to explain a difficult exit. If the exit involved a settlement, resignation discussion, or negotiated departure, get advice before describing it - references can accidentally cut across confidentiality terms and create fresh disputes. This is where a properly drafted Deed of Settlement (and sticking to it) matters.

Step 5: Keep A Record Of What You Said

This is a small step that can save you a huge headache later.

After a verbal reference, make a short file note including:

• Date and time of the call
• Who you spoke to and their organisation
• The questions asked (high level)
• What you said (summary)

If you provided a written reference, keep a copy.

Step 6: Train Managers (Or Keep References With One Person)

If your business has supervisors or team leaders, it’s worth setting a simple internal rule: references are only given by the owner/manager, or only by someone trained on the checklist.

This protects you from “off the cuff” comments that later become evidence in a dispute.

Written Reference Letters Vs Phone References: Which Is Safer?

Both can work - but they carry different risks.

Written References

Written references are often safer because you can:

• Think before you write
• Check dates and records
• Keep the tone consistent and professional
• Keep a copy for your files

If you give written references, keep them short and factual, and avoid “absolute” statements you can’t back up (for example, “never made a mistake” or “always honest”).

Verbal References

Phone references are higher risk because they can become informal quickly. Recruiters may push for “real talk” and ask leading questions.

If you provide phone references, treat them like a formal HR process:

• Schedule the call (don’t do it while busy)
• Use your checklist
• Take file notes immediately afterwards

Either way, consistency is key. If you make it up as you go, you’re more likely to overshare or contradict your own records.

Key Takeaways

• There’s no single rule for what references employers can give in NZ, but references are regulated indirectly through privacy, employment, and general legal obligations.
• You can usually share objective facts and honest, job-related opinions - but you should avoid speculation, rumours, and irrelevant personal commentary.
• Be careful with personal information under the Privacy Act 2020, and only share what’s relevant and appropriate for the purpose of the reference.
• Avoid discriminatory content (even unintentionally) by steering clear of protected characteristics and personal life details.
• Defamation and negligent misstatement risk means you should stick to what you can substantiate and check records before mentioning warnings or misconduct.
• A simple internal process (consent check, checklist, one authorised person, and file notes) makes references safer and more consistent.

If you’d like help putting a clear reference process in place, updating your employment documents, or managing a tricky exit where a reference might be sensitive, we’re here to help. You can reach us at 0800 002 184 or team@sprintlaw.co.nz for a free, no-obligations chat.