Former Employee Demands Experience Letter: Are We Legally Obligated to Provide It?

Dear All,

I'm working as HR Head for an organization and right now facing an issue as mentioned below. A guy worked for our organization for 1 year and subsequently left due to some differences with management. As per the job agreement, he has to give 1 month notice or salary in lieu of that. He sent an email about his resignation to his boss and subsequently stopped coming to the office. We gave him all his dues applicable along with Form 16 but not his experience/service letter. Now, that guy is asking for an experience letter and saying that if he is not given that in a fortnight, then he will follow legal recourse for the same.

My questions are:

1. Are we bound to give him an experience letter?
2. Can we avoid giving him one?
3. If he goes legal, on what grounds can we defend ourselves?

Thanks,
Vijay

As per my understanding, if you have cleared his account from your company, then you should give him his experience letter. His email justifies that he has submitted his resignation, and if he has received an acceptance in lieu of that, then it is understood that it has been accepted by the organization too. So now, what's the point in holding his experience letter?

Regards,
Anu

1. Are we bound to give him an experience letter?
Ans: You are not bound to give him an experience letter. But when an employee leaves the organization, please try to bid him adieu in a smiling and pleasant way. All of these aspects carry a lot of weight, from company reputation to the reminiscent stint the employee had with the organization.

2. Can we avoid giving it to him?
Yes, you can. Simply inform him that you won't be issuing him an experience letter.

3. If he takes legal action, on what grounds can we defend ourselves?
You can state that during his time with the company, his performance was found unsatisfactory, which you prefer not to mention in writing. Highlighting this could have a negative impact on his future career prospects.

Overall, my suggestion is to issue him an experience letter because if a good opportunity arises, shouldn't he consider moving on?

Hello Vijay,

From what you have described, it appears that no handover has taken place. If this is the case, then you did not have to settle his accounts.

As Anu said, having cleared his accounts and Form 16, it becomes pointless to withhold the experience letter. However, if you have an exit policy, kindly refer to the terms on this. Alternatively, look at the terms of release in the appointment letter or perhaps the Standing Orders. I am not aware of any legal obligation on the issue of the experience letter, but you can check this with your legal department. Many small organizations do not bother with this formality.

Regards,
Ryan

Hi Vijay,

I do recommend the same: don't hold his service letter. It makes no sense to hold it. As you said, if he goes legally, it will spoil the reputation of the organization, and nothing else will happen. Unless you have any work-related issues that he has left uncompleted, you cannot take any action against him. Moreover, it should be conveyed to him in writing, and you should hold proof that he has received the document and not responded to it.

There are ways to address his behavior, but what is the purpose? Even your current employees will feel bad about this over time if not immediately. So just send it.

Regards,
Vijayakumar

Vijay,

As you mentioned in the post that you cleared his account from the company:

- The company is never bound to issue the experience letter. But ethically, if he is working in your organization, then issue him the said letter. It also works as a goodwill gesture.
- What is the need to restrict him from the letter? Why? Come on, be professional.
- That particular matter makes no sense to go into the court, but if it can, you have to justify yourself on which grounds you are not providing the letter.

Hassan

Hi Vijay,

These are the common issues that I face in my day-to-day life in the office. The only and simple way to handle this situation is to ask him to serve the notice period or penalty as per the company policy. The guy will shut himself and get rid of this.

Thanks,
Jay

Hi Jay,

I agree with your view, but he has been given all other benefits, and now, just by holding the experience letter, nothing can be done. It's not fair on our part to hold onto these things.

Regards,
Vijayakumar

Hi, Vijay Kumar. I don't know about the policies in their organization, but in our organization, we face such cases fortnightly or monthly. The most important thing is the acceptance of resignation. Not the supervisor, but the functional/dept head has accepted his resignation with the shortfall of notice or agreed to waive it off. If there are any leaves left, they are adjusted; else, the amount is recovered. In the latter case of a waiver, no amount is recovered.

If the employee is absconding after tendering the resignation, we can hold his letter with the reason of non-adherence to the exit/notice period. However, this should be mentioned in the policy. I believe in that scenario; he can't do anything. As mentioned in one of the posts, it may give a false impression to his colleagues, but I think it will rather instigate them to do the same thing.

Regards,
Deepa

Hi Deepa,

As I understand, once an employee gives a resignation in writing, there is no way of not accepting it. You may delay in giving the acceptance of the resignation, computation of full and final settlement, experience letter, etc., but legally, you cannot stop the employee from walking out of the organization at the end of his notice period.

I have had many discussions with managers who wanted to hold back their staff beyond the notice period. Unless it is mutually agreed, the employee must complete his handover and exit from the premises at the last day of his notice period.

Regards,
Ryan

Hi Ryan,

I absolutely agree; there is no second thought about that. However, what I meant was the acceptance of the notice period duration. If the head accepts, then he will be relieved with the letter, even if he leaves within 2 days or a week against a month's notice period.

Hi,

What legal actions can an employee consider if the employer accepts his resignation letter but withholds his salary for an entire month, citing trivial reasons?

Regards,
Shiju

As far as I know, it depends upon the policy of the company. Usually, the salary is put on hold when an individual resigns, and the complete amount is given after the account is settled at the time of relieving. This allows for any recoverable amount to be recovered.

However, I believe if there is some urgency, the individual can request the salary in between, but they must provide a strong reason. Actually, it all differs from organization to organization based on the defined policies.

Dear All,

I'm a bit baffled with responses to my query. Can somebody tell me what should be a definitive stand on it?

As this matter happened 1 & 1/2 years back, can we hold him liable for not doing proper handover now? Also, at that point, his resignation (he resigned via email, not in writing) was not accepted by his boss, although later on exit formalities (except the exit interview), full and final settlement was done (which the employee pursued through email).

Till date, we haven't taken action against him.

Thanks,
Vijay Raj Singh

Hi Vijay,

I'm in agreement with the essence of most of the advice that has reached you, including strong ones like Deepa's.

I presume the person left before his notice period expired. You, however, did not deduct the salary deductible in lieu of the notice period and cleared all his dues. Though I'm not clear about your company policies, I assume he just vanished after sending the email - no job closure, handover, etc. So I think it is not important to do anything from your side, and legally he has no standing. As far as the fear of reputation to the company is concerned, such reality applies to him too, and it is sad but I think in a more grave manner. Nobody would like to recruit a troublemaker.

I agree with Ryan that you cannot hold an employee against his will. But who wants to hold him here!! He's already left in a very indisciplined manner (I'm presuming the info given is all there is to it).

BUT in spite of all these MY ADVICE:

You have already settled his accounts and all dues. So why hold on to the letter? The other way around, giving the letter but not the undeserved amount looks even better. Let's be realistic - you do not benefit in any manner by not giving the relieving letter. If it is to set a precedent, I think you must find a more creative and stronger message. So give him his letter, let him be gone with it, and don't waste any more time or mindspace on him. Believe there are better and more constructive things you could find to do.

Also, I agree with the fact that settling his dues without any issues is, in a way, accepting that everything is in order.

Thanks and Best Regards,

Santosh

Dear Vijay,

I am again saying the same thing... you having cleared his account from your company shows that you had no objection to the way he had submitted his resignation. Another point is that an email is the safest way to resign because the employee always has a record of informing the company of his resignation in his mail (sent), no matter if acceptance has been acknowledged or not. You can hold him in any way.

Secondly, the only thing you can do is to mention improper resignation and notice period not being served in his experience letter, which would serve as a lesson to him. Though you can also choose to avoid it.

As aptly said, it was an HR fault not being cautious at that time, so it's better to use your time in more constructive matters and provide him with his experience letter/relieving letter.

Regards,
Anu

Hi Santosh,

I agree with your point that there is no harm in holding his letter. However, we have to be professional; we just can't let things happen personally. He is asking for the letter after 1 1/2 years, which indicates his need for this letter and the necessity to make him realize the importance of following company policies in the future. This will prevent him from repeating the same mistake. While any employee can skip 6 months of experience, it is difficult for him to skip 1 year and above, which could be the reason he is requesting the letter after such a long period.

Another concern is that what we do with one person resonates with others. His colleagues or other employees may find a good excuse to follow him if they know we will provide a relieving letter even if they abscond.

However, the biggest mistake was on the management side for allowing him to clear his dues, indirectly accepting his behavior. It is up to them whether they want to provide the letter or not. If not, they need to find a valid excuse for clearing his dues (possibly to avoid any outstanding issues from the company's side).

My main aim in providing strong points against it is to emphasize that an employee cannot violate company policy without consequences. The letter may include some comments related to this lesson.

Regards,

Deepa

Dear Vijay,

These issues regarding employees not serving a one-month notice are very common nowadays. Since I work in an IT company, I go through these cases very often. The experience letter could have been held back if his full and final settlement was pending. The point here is, by holding back his experience letter, both parties have nothing to gain. An experience letter should be held back only in very serious cases like leakage of confidential information, etc. I suggest you end this on a happy note by giving him the letter.

Thanks and Regards,
Karan

Hi,

Why can't you provide an experience letter stating, "He worked during a specific period, and his performance is not up to par. Improvement is needed." Additionally, mention that he left the organization after providing sufficient notice period or handing over responsibilities.

Hi,

Why can't we give him an experience certificate stating, "He worked during so and so; we find he needs improvement in his performance..." Do you really feel so?

Dear Kumarpvss,

That would not be a very professional behavior. It would only show that the organization is being petty-minded. There is really no need to spoil someone's career like that. It could have a serious effect on the person's professional and personal life. This is what I had learned from my superiors when I was starting out in HR. Any views from others?

Regards,
Ryan

Hi Ryan,

I agree. I have just brought that up for discussion, i.e., even when we truly feel that he/she is not up to par, we cannot say so for various reasons. The same thing happened to me when one accountant resigned, absconded for 2 months, got a job somewhere else, and then asked for a relieving letter. He came with the support of a familiar local contact whom we cannot ignore.

We granted him the relieving letter as usual, but when I provided him with a service certificate, I simply stated that he worked during a certain period and that we found his work to be good - which I truly believe. However, I did not mention anything else and omitted the usual praise for good conduct, etc. By doing this, I am honest in certifying his work while also ensuring his satisfaction as it reflects positively on his performance without addressing the other aspects.

Hi Kumarpvss,

Your action is good. I have seen a format of a letter which would simply certify dates of joining/leaving and designation. There would be a line wishing the employee all the best in the future, with no comment on the work during the tenure with the organization.

There are some organizations that give this letter to all departing employees without differentiation. Interesting policy, right?

Regards,
Ryan

Hi,

As per my knowledge, you should issue an experience letter to that particular person. If you issue him the experience letter, he'll be grateful to you and your organization.

Cheers,
Santosh
Branch Manager
9912107600

Ryan,

I totally agree with you. No ex-employee should be given a letter that may spoil their future career prospects.

Regards,
Anu

Dear All,

I'm working as HR Head for an organization and right now facing an issue as mentioned below. A guy worked for our organization for 4 years and subsequently left due to some differences with management. As per the job agreement, he has to give a 2-week notice or salary in lieu of that. He sent an email about his resignation to his boss and subsequently stopped coming to the office. We didn't give him all his dues applicable along with Form 16 but his experience/service letter.

Now, that guy is asking for an experience letter and saying that if he is not given that within a fortnight, he will follow legal recourse for the same.

My questions are:
1. Are we bound to give him an experience letter?
2. Can we avoid giving him one?
3. If he goes legal, on what grounds can we defend ourselves?

Thanks,
Kapil
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Hi,

If you have mentioned in the offer letter about the notice period and if the employee has accepted the same, then you can ask him to serve the notice period as stated by our team.

Unless his behavior is unethical when leaving the company, you can consider his resignation and provide him with an experience letter.

With regards,
Vamsi R

You should provide the experience letter. What will happen is that if you don't give him the experience letter, he will tell everyone he meets and also in his new organization. This will only create a bad image of your company.

Dear All,

Thank you for your views. I had a chance to discuss this matter with the company lawyer, and according to his opinion, we have a very weak case. If that guy pursues legal action, he may even sue or claim for harassment.

The following is an excerpt from the "CONTRACT LABOUR (REGULATION & ABOLITION) ACT, 1970 & THE RULES":

Chapter: Registers and Records and Collection of Statistics
Section 77: Service certificate
On termination of employment for any reason whatsoever, the contractor shall issue to the workman whose services have been terminated a service certificate in Form XV (Rules 75, 76, and 77).

For violation of the provisions of the Act or the Rules, imprisonment of 3 months or a fine of up to Rs. 1000. On continuing contravention, an additional fine of up to Rs. 100 per day.

We have decided not to pursue this matter further. Thank you for your help.

Vijay Raj Singh

Hi Vijay,

You are not legally bound to issue any experience letter provided your company should not have any standing order or policy written in this regard. Otherwise, you can very well defend yourself that the individual's performance was far below our company's standards. Any certificate issued to him is likely to tarnish the image of our company. Due to this reason, a certificate or letter could not be issued to him.

Once everything is cleared, then why stop the letter? Is it just the ego of someone, or did he really cause harm to the organization?

Thanks,
Anup

Hi Vijay,

Referring to your query posted...

1. An experience letter is not mandatory; it is at the discretion of management.
2. No legal obligation is involved.
3. Even if it is necessary, you can write, "the person is terminated due to performance not found satisfactory."

Hope your query has been answered.

Kind regards,

Dear All,

In our organisation, we have a common Experience cum Relieving Certificate. However, by going through responses to my post, it appears that we have discretion in issuing Experience Certificates, but employees have a legal right and entitlement to a relieving certificate.

Please let me know if my understanding is correct.

-Vijay Raj Singh

Hi Deepa,

I do agree with you, but still, we are not here as teachers or lawyers. Whether you like it or not, if the person is able to influence his colleagues, which we will be knowing at a later point in time, then the end result is going to be costly. We always cannot stick to rules, but we have to explain these things and document properly with an Exit checklist so that we don't end up wasting time on these things later.

I don't say that we need to be afraid of losing people, but I say that we need to correct ourselves fast and ensure that we don't repeat it next time.

I wish to thank you for your time.

Regards,
Vijayakumar