An employer who undertakes in a settlement agreement to provide positive references must actually comply with this. If the employer fails to do so and the employee consequently misses out on a new job, this may lead to liability for the resulting loss. This follows from a recent ruling by the Subdistrict Court of the Midden-Nederland District Court on 8 April 2026.

What happened?

The employer and employee had previously agreed to terminate the employment relationship via a settlement agreement. That agreement stipulated that the employer would provide positive references for the employee.

Following the end of the employment relationship, the employee applied for a job with the Province of Overijssel. That application process went well. The employee had by then successfully completed the interview regarding terms of employment and was under the impression that taking up the post was merely a formality.

As part of the recruitment process, the Province of Overijssel subsequently requested a reference from the former employer.

However, the former employer provided a reference stating, among other things, that the employee was not capable of acting proactively and independently and that the employee required a great deal of supervision.

Shortly afterwards, the Province of Overijssel decided not to hire the employee after all.

Employer breaches agreements in the settlement agreement

The subdistrict court judge first noted that the parties had explicitly agreed in the settlement agreement that the employer would provide positive references. According to the employer, this did not mean that only positive information could be shared and that there would be scope to make critical comments as well.

The subdistrict court judge did not agree with that position.

According to the subdistrict court judge, the employer’s statements could reasonably be interpreted by the employee as a commitment that the employer would speak positively about her to potential new employers. The reference provided by the employer clearly did not meet that standard.

The subdistrict court judge further considered that comments such as the employee being insufficiently proactive and independent and requiring a great deal of supervision could hardly be described as positive.

It is also significant that the employer had drafted the settlement agreement itself. To the extent that there is any ambiguity regarding the interpretation of the provision on references, that ambiguity is therefore at the employer’s own risk.

In doing so, the employment tribunal judge aligns with the established rules of contractual interpretation, whereby ambiguities in provisions drafted by one party may, under certain circumstances, work against that party.

Causal link between reference and rejection

The subdistrict court then had to assess whether there was a causal link between the negative reference and the failure to secure the job with the Province of Overijssel.

The subdistrict court answered this question in the affirmative as well.

In doing so, the subdistrict court considered it relevant that the recruitment process was already at an advanced stage. The interview regarding terms of employment had already been successfully concluded, and it was only after receiving the reference that the Province of Overijssel decided not to proceed with the employee.

According to the subdistrict court, this makes it sufficiently plausible that the negative reference played a decisive role in the rejection.

Compensation to be determined in separate proceedings

The subdistrict court ordered the employer to compensate the employee for the loss suffered as a result. The extent of that loss must still be determined in separate proceedings to assess the damages.

Such a referral to the damages assessment proceedings takes place when it is sufficiently established that damage has been suffered, but the exact extent of that damage cannot yet be easily determined.

The damages in a case such as this can amount to a considerable sum. Consider, for example, lost salary, pension accrual and other terms of employment that the employee would have received from the Province of Overijssel.

Read the ruling here.

Practical implications

This judgment once again demonstrates that employers must exercise due care when providing references for former employees, particularly where explicit agreements have been made in a settlement agreement.

Employers sometimes fail to realise that a reference can have major consequences for a former employee’s career. Where a positive reference has been promised, critical or negative feedback may lead to liability for the resulting damage.

This ruling is relevant for employees as they can rely on it when a former employer fails to honour agreements made regarding references.

What can the employment lawyers at SPEE advocaten & mediation do for you?

Do you have questions about a settlement agreement, references, an employer’s liability, or a rejected job application following a negative reference? The employment lawyers at SPEE advocaten & mediation advise both employers and employees on the termination of employment contracts, negotiations regarding settlement agreements, and proceedings concerning employer liability.