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bad reference from employer-advice please


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Hi

I am actually writing this on behalf of my customer. he worked for a company and was off on long term sick. after he returned due to the pressure from his manager he made a mistake in work and informed management as he was not trying to be dishonest. he was brought up for gross misconduct and was told he would go to a hearing.

his mistake was wrong but common in the place that he worked (not making excuses-just being honest-i worked there before and know)

he had an excellant defence due to other peoples behaviour and sent this in writing.

(before he was suspended he handed in his notice and it wasnt taken ery well so i think this is why his actions were highlighted even though alot worse was happening.)

anyway his hearing was due to take place the day he was leaving and he was told that the outcome was likely to be negative.

he sent his defence to hr and within 30mins they emailed to say as it was his last day they would not persue the matter.

it was obvious they did this as his defence would have caused alot of problems if brought forward.

he is now looking for a new job but has been told his refernce with ex employer will say he was suspened.

can they do this even though it was them that decided not to pursue the matter? he was never given the chance to defend himself properly.

i would appreciate any advice:confused:

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A reference must be true and accurate & if there was no finding of dishonesty they can't even hint at it by saying he was suspended

 

Tell him to obtain a copy of any reference before it's sent to a prospective employer

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I will move your thread to the employment forums. You will get more advice in there.

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  • 4 weeks later...

Hi Guys,

 

I hate to contradict the posts above......

 

As Jon Cris pointed out, references must be true and accurate, and any negative remarks must be objective and quantified, however, it's standard practice to highlight if an employee left prior to a pending disciplinary hearing, and a previous employer is perfectly entitled to do this.

 

They can't speculate as to what the outcome of the hearing would have been, but they've not acted improperly here.

 

I do sympathise, because it's crap when such action is taken as a result of a mistake as we all make them (in fact, it's only 8:55am, and i've made several all ready).

 

If it was me, I would ask the previous employer just to confirm dates of employment on any future reference. They don't have to comply, but in such circumstances they often do just for a quiet life.

 

Hope this helps.

I'm not a legal expert. Anything I offer is my opinion based on my personal experience, so please get professional, legal advise before taking any action.

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I understand a former employer can be sued for ‘negligence’ if they provide a reference which contains hearsay, speculation, personal opinions or simple downright lies.

 

That is to say they can be taken to court and sued for lost earnings, distress etc caused by a misleading reference.

 

The get around which a lot of companies use is to just respond with the persons job title and the dates they were employed.

 

You cannot force a former employer to give you a copy of any reference they provide, but you can request it from the recipient, with a Subject Access Request if necessary.

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Hi again,

 

Just to add to Zazen's point, you can request a copy of the reference from the receipient, but the receipient must ask permission to disclose the reference to the individual from the provider. If they didn't seek express permission from the provider, they would be in breach of the data protection act.

 

Cheers

I'm not a legal expert. Anything I offer is my opinion based on my personal experience, so please get professional, legal advise before taking any action.

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References are subject at common law to qualified privilege which means that a 'bad reference' will be perfectly legal provided that it is true and accurate, drafted with reasonable care & skill, and is not motivated by malice.

 

Although I would say that fairly common practice, and certainly safest is to just confirm start date, end date, job title - no more. There are exceptions e.g financial services covered by FSA Regs

 

Can you not obtain copy of the reference by submitting a S.A.R - (Subject Access Request) request?

...................................................................... [FONT=Comic Sans MS]Please post on a thread before sending a PM. My opinion's are not expressed as agent or representative of The Consumer Action Group. Always seek professional advice from a qualified legal adviser before acting. If I have helped you please feel free to click on the black star.[/FONT] [FONT=Comic Sans MS] I am sorry that work means I don't get into the Employment Forum as often as I would like these days, but nonetheless I'll try to pop in when I can.[/FONT] [FONT=Arial Black][FONT=Comic Sans MS][COLOR=Red]'Venceremos' :wink:[/COLOR][/FONT][/FONT]

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http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/references_v1.0_final.pdf

 

In most circumstances, you should provide the information in a reference, or at

least a substantial part of it, to the person it is about if they ask for it. Even if the

referee refuses consent, this will not necessarily justify withholding the

information, particularly where this has had a significant impact on the

individual, such as preventing them from taking up a provisional job offer.

However, there may be circumstances where it would not be appropriate for you

to release a reference, such as where there is a realistic threat of violence or

intimidation by the individual towards the referee.

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...however, it's standard practice to highlight if an employee left prior to a pending disciplinary hearing, and a previous employer is perfectly entitled to do this.

 

They cannot do so in circumstances where the employer has discontinued disciplinary proceedings, regardless of their reason for doing so.

 

If they did highlight this, they would be on sticky ground.

If I've been helpful, please add to my rep. :)

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