Sorry in advanced this may be a bit of a long post.

In 2012 I left a job as we relocated 193 miles away, as I was still in my probationary period i only had to give one weeks notice, but actually gave them four. Recently i was offered a job in the NHS, based off satisfactory references which was withdrew. Informally the HR advisor said it was due to one reference in particular, but a letter was sent stating the job offer was based of 'receiving satisfactory references, crb and medical'.

Last week I was offered another job but this prospective employer called me on thursday and stated that one reference had come back stating id been dismissed for gross misconduct and they wanted more information. Obviously I had no idea what was going on and got in contact with the company I left in 2012. They stated in my file was details that i had been dismissed for gross misconduct so when i asked for more details they said they had none; no dates of any meetings, no details of the incident(s) that would have led to gross misconduct….. nothing.

They stated they had sent letters to my old address, 8 weeks after i relocated and 8 weeks after my last day at the company, that were sent back to the company as no one signed for them. I must say that in late(Aug 2012) I became a foster carer and received a reference from this company and not once was it mentioned about any dismissal for gross misconduct.

Now ive sent off a subject access request to this old employer for all the details they have on my employment there but I wanted to know

a)how long do employers have to keep your old personnel file?

b)should i send a SAR to the job that was withdrawn to actually see what that reference says?

c) ive received some really pathetic questions(below) should I reply first or wait for them to answer my SAR?

Do you have a copy of the resignation letter?

Messages were left on your mobile phone, but you did not make contact with anyone following these, could I ask why?

You mentioned that you went on leave prior to moving house, was this abroad or in the UK

On your return you would have had notice’s via the postman to collect letters from the post office from Dimensions?

Once you moved house, did you not have any mail forwarding on the address?

Have you ever received a P45 from dimensions, did you leave a forwarding address with payroll?

You mention receiving a letter of reference from dimensions for adoption services, do you have a copy of this reference, or could you obtain a copy of the reference from the file at the adoption services?

Could you tell me who completed the reference for the adoption service?

Thank you so much for any help you may be able to provide

There is no specific time period for which employment records should be held - different aspects of employment may require specific records to be kept for longer, but in general the employer should keep records for at least 6 years to overcome any limitation periods during which an employee could take legal action. Certain H&S records may need to be kept for as long as 40 years as they could relate to potential litigation many years later if a condition was to develop which could have been caused at work.

As to the SAR letters. The prospective employer who has received the reference would be obliged to provide you with details of that reference, and yes, the previous employer should provide you with any relevant information held about your employment. It would beggar belief for an employer to not have kept records of disciplinary action, and I would be making some very loud noises about malicious falsehood and defamation unless they can substantiate the claim that you were dismissed. Surely somebody would still be working there who would remember details?

The questions that you are being asked all seem perfectly reasonable to be honest - it looks as though they are trying to help find a way to NOT withdraw the job offer, so I would also be working hard to try and come up with some evidence of my own - SAR the adoption service (or ask politely) for a copy of the reference they received? Have you nothing, even on a computer which might look like the letter of resignation that you submitted? Are you sure that there was nothing looming which might have looked like a disciplinary when you resigned? Is it possible that you were dismissed in your absence having failed to respond to letters (irrespective of the reason?)

Something doesn't quite add up here??

SW's advice is spot on - but I do agree that something doesn't quite add up?

What were the exact circumstances of your departure from the role?

If they have erroneously given you a reference stating gross misconduct, this could give rise to an action for negligent misstatement if you suffered a loss as a result (loss of chance for the new role perhaps). But more details are needed.

Hi thanks for your replies.

Becky2585: I left simply because we moved 193 miles away so it was impractical to communte there daily. I actually handed in my notice the first week in January before I went on holiday(had the holiday booked before I started working there) and came back and continued to work there for a further 3 weeks( so I actually gave them more than the weeks notice that I needed). The letter I received from the job offer at the NHS states 'regrettably, due to references received we are therefore unable to progress your application further on this occasion'. It was only because I was offered another job and the HR phoned me and asked for details of this gross misconduct that I knew this had been put on a reference, she told me what employer it had come from etc.

Sidewinder: I spoke with their HR consultant, who sent those questions, and he said he is baffled as to how I could be dismissed for gross misconduct and yet nothing be in my personnel folder. Luckily my fostering agency is brilliant and they have sent me a copy of the reference they received, my supervising s/w also spoke to a individual at the company and has given me her name and the date the phone call occurred but no mention of dismissal for gross misconduct was mentioned then. The thing I don't understand is I would have already handed in my notice and worked it so it seems odd to dismiss someone AFTER they have left the company, I mean why bother? Yes luckily I have a copy of my resignation letter and my old diary( where I jot down days im in etc) that ive marked when I handed it in, and all the shifts I worked until I left. I also don't understand then why they wouldn't give me letters WHILST I worked for them(as they had a extra 3 weeks to do that) but posted them to my old address in April 2012 so weeks after I had left and moved.

The simple fact is that if you had already left due to resignation, they can't sack you for GM as you no longer worked there! They could have put "under investigation for GM" if they were investigating the allegations - but it all sounds very odd.

I do wonder, if the date of the GM "dismissal" is after you left, if it's worth a solicitors letter pointing out the correct chronology, enclosing copies of the reference and resignation documents, and robustly informing them of their obligations in providing an accurate reference and their potential liability for negligent misstatement... It may prevent any similar occurrences in the future!

Even if I was under investigation for GM surely they would have something as to why documented in my personnel file? also as the job im doing now, I feel, would deserve the right to know even if I was under investigation for GM(after all im caring for looked after children in my own home 24hours a day with NO direct supervision) why wouldn't they have informed them?

TBH im going to pursue this till the 10th degree until I know why/how that came in my file but I have to bide my time and give them 40 days to see what information they have as I still have no clue what(if?) there was an allegation and why it has taken until 2014, post giving a tleast one reference, to highlight this. I do think I have a good case for libel(?) as to me 'sorry' isn't good enough.

There should absolutely be something on your file - they cannot leave a record half completed as they are in a sense stating that 'We think that this person was dismissed for an act of Gross Misconduct, but please don't ask us for any more details as we can't remember'. You simply cannot make statements which are potentially life-changing without being absolutely certain. To do so, as Becky advises would almost certainly constitute a 'negligent misstatement'

This would be where the person or organisation rely on a statement which cannot be substantiated - ie that you were dismissed for an act of gross misconduct, and having been asked to substantiate that claim they are unable to do so. Their negligence in making this assertion, you would claim, and the breach of their duty of care in providing a true and accurate reference, has caused you damage (the loss of job opportunities) and a court could both award damages and issue an order that the employer must not repeat the statement. My earlier suggestion of malicious falsehood would be where the statement was being made knowingly incorrectly and with malicious intent, which is worse, and would be harder to prove.

A threat of libel action would be a possibility, but would be prohibitively expensive to take the necessary High Court action, whereas an action for negligence could be taken through the County Court system.

I would put the employer on notice that in addition to requesting full details of all information held about you under the provisions of the Data Protection Act, that you are considering action for negligent misstatement and reminding them that:-

You resigned from your employment, and the reason why you did so

The resignation was accepted

You can prove this

There were no disciplinary actions or investigations pending or suggested at the time of your resignation

You have had no contact with the employer since leaving and that no question has been raised about your performance prior to resigning or since

They have now on at least two occasions provided references stating that you were dismissed despite this not being the case

You have sought information from the HR partner of the employer and have been advised that there is no information on file which substantiates the statement that you were dismissed

The statement that you were dismissed has caused you to have at least one job offer withdrawn which has caused a substantial detriment

In the absence of any evidence to the contrary you require that the employer ceases and desists from making further defamatory statements and immediately corrects information already provided to prospective employers

Subject to their response you reserve the right to take appropriate legal action in respect of their negligence.

If you can get a solicitor to send something appropriate along those lines it may carry more weight