bad reference

[sorrylittlelot]

Hi all, thanks in advance for any help.

 

I recently got finished by my employment agency for not ringing in one day to say i was ill and would not be attending my shift that day.

 

Since then I have obtained a copy of my reference that they sent to a potential new employer and the reference cost me the job.

The reference they have given me states that I have poor everything from punctuality to attendance to health to being a member of the team and getting along with fellow workers.

I know that this is false as I was late twice in 8 months, had 9 days off due to an operation (used holiday days to cover this in advance) and had 2 days off ill, one of which is where I did not ring in, in time.

 

Can I request a copy of my time sheets etc from the employer as I know this will prove the reference to be inaccurate and it is stoppiong me getting a new job.

 

Thanks all

[honeybee13]

Hello. This doesn't sound very fair on you. I don't know the answer about timesheets, but I'd say it's worth asking. I expect other caggers will comment. Do you have copies of any documents that would help prove your case?

 

Btw do you have any kind of contract with the agency that spells out what you should do in the event of illness?

 

My best, HB

[papasmurf1cx]

Why don't you write to the agency and ask for a disclosure under the Data Protection Act ie a SAR and for all documents pertaining to you be disclosed. You could ask for the time sheets (which should be kept for an accounting purpose for 6 or 7 years) to be included but not only those but all documents.

 

You can complain about the reference and ask that this be expunged from your record as it is not a true representation of your attendance record. You can quote what you have told us.

 

You may or may not get anywhere with this but it surely will elicit a response. Once you have a written record of your disagreement you then have evidence of it to tell a new prospective employer when asking for references. You can give the agency's details but also state that you are in dispute and these are the reasons. The new employer can then make a considered judgement.

[SarEl]

My advice would be to write a letter to the agency outlining all the factually incorrect information, pointing out the true facts, and that fact that this has already caused you monetary loss. Tell them that you have obtained the copy of the reference, and that any further referece from them based on factually incorrect or misleading information will result in your making a claim to the County Court for negligent misstatement, and that you will sue them for danages and costs.

 

It's something of a bluff - you could do it but the whole process would be quite a torture and you would have to pay legal fees up front. But it works much better than histrionics about libel and slander (which is what most people resort to, and the fact is that lawyers would simple laugh off such a threat as totally unaffordable - for you - and unrealistic). Negligent misstatement does exist, it is actionable in lower courts, and therefore more of a real threat - although they will probably have to look it up to find all that out since it isn't well known as a remedy.

 

Please bear in mind (and this is to everyone!) - this only works if the statement is evidentially untrue or misleading, and cannot be used in cases where the statement is true (there's a lot of myths about employers not being able to give nad references - they can and do) or a matter of opinion.

[papasmurf1cx]

SarEl... I thought pure economic loss through negligent misstatement was not actionable as it would open unlimited flood gates of claims? Obviously I bow to your better knowledge, just wondered though.

[SarEl]

SarEl... I thought pure economic loss through negligent misstatement was not actionable as it would open unlimited flood gates of claims? Obviously I bow to your better knowledge, just wondered though.

 

No this isn't correct. Hedley Byrne v Heller is the famous case which turned this around - can't recall the date but it was early 1960's. Since then a number of other legal precedents have been set. You are referring to the view expressed in White v. Jones that such actions should not open a flood gate - although I have always failed to see what is wrong with that! But the law as it stands says that economic loss might be recoverable where the defendant has assumed responsibility to the claimant, either directly or indirectly. This liability may arise from negligent statements. In addition there may be liabilty for omission as well as action. An employer or agency assumes responsibility for an employee or for a former employee, if they decide to write a reference (which they may of course refuse to do - no law says they must). Therefore it is actionable, and I have used it in court, although not terribly often.

 

It isn't something that I would suggest someone does, and certainly not without legal help, because it is fraught with difficulty, but I wasn't suggesting that - as a threat it can be most effective because it has been used in cases involving references. Defamation, on the other hand, is pretty useless as a threat - who is going to pay the deposit (I think it's currently £10k - but not my area so I would have to look it up to be sure) for the high court, plus their legal fees, and risk loosing, over a reference - nobody, that's who. That's why it's a useless bluff!

[papasmurf1cx]

Sorrylittlelot..... SarEl is giving great advice. A letter pointing all this out and asking to correct the negligent misstatement. Is there any chance of the employment / employer you missed out on re employing you if the mistake is corrected? If so then perhaps that is the tact you should try too.

[JonCris]

Hi all, thanks in advance for any help.

 

I recently got finished by my employment agency for not ringing in one day to say i was ill and would not be attending my shift that day.

 

Since then I have obtained a copy of my reference that they sent to a potential new employer and the reference cost me the job.

The reference they have given me states that I have poor everything from punctuality to attendance to health to being a member of the team and getting along with fellow workers.

I know that this is false as I was late twice in 8 months, had 9 days off due to an operation (used holiday days to cover this in advance) and had 2 days off ill, one of which is where I did not ring in, in time.

 

Can I request a copy of my time sheets etc from the employer as I know this will prove the reference to be inaccurate and it is stoppiong me getting a new job.

 

Thanks all

 

No employer can give you a bad reference they can only give you a brief factual one ie you worked there of from what period They can't even refusd to give one as thats considered the same as giving a bad one

 

Suggest you speak with a lawyer with a view to suing the agency for amongst other things 'restriction of trade'

[SarEl]

No employer can give you a bad reference they can only give you a brief factual one ie you worked there of from what period They can't even refusd to give one as thats considered the same as giving a bad one

 

Suggest you speak with a lawyer with a view to suing the agency for amongst other things 'restriction of trade'

 

Sorry, but I have to say it - I am a lawyer. An employment law barrister of 30 years standing to be precise. And this is not correct. An employer can give as detailed a reference as they wish or is within the company policy. They can give a bad reference provided that it is factual. And all employers have the right to refuse to give a reference - there is no law that says they must give one. And restriction of trade is a whole different area of law and has no applicability in this context.

[andydd]

Sorry, but I have to say it - I am a lawyer. An employment law barrister of 30 years standing to be precise. And this is not correct. An employer can give as detailed a reference as they wish or is within the company policy. They can give a bad reference provided that it is factual. And all employers have the right to refuse to give a reference - there is no law that says they must give one. And restriction of trade is a whole different area of law and has no applicability in this context.

 

I agree, an empoyer can give a bad refrence IF its true. In this day and age though you will prob find that many employers won't give a bad reference, after all whats in it for them ?...they will keep it short and factual and maybe not say much either way, if they give a bad reference they do run the risk of legal action if it is proved that it is not correct.

 

Andy

[ForestChav]

(As you'd expect) SarEl is right. They can give a bad reference, they can give a good one, as detailed as they like but whatever they do say has to be factual.

[sorrylittlelot]

Thanks everyone for the graet advice, as SareEl advises I shall write a letter to the agency asking for all documentation and pointing out the errors.

 

I shall keep ypu updated, thanks again guys.

 

Now to construct my letter

[JonCris]

Sorry, but I have to say it - I am a lawyer. An employment law barrister of 30 years standing to be precise. And this is not correct. An employer can give as detailed a reference as they wish or is within the company policy. They can give a bad reference provided that it is factual. And all employers have the right to refuse to give a reference - there is no law that says they must give one. And restriction of trade is a whole different area of law and has no applicability in this context.

 

Coote v Granada to name but one

[SarEl]

Coote v Granada to name but one

 

The problem with quoting case law to sustain an argument is that you have to be sure that the case law supports your argument. The position that I stated previously is the position in law. Coote v. Granada does not in any way change this. Coote v Granada was not a claim over a reference - the reference was incidental. It was a claim over victimisation under the Sex Discrimination Act, in that the claimant had previously brought action under the SDA alleging unfair dismissal due to pregnancy (which had been settled out of court). The later claim was brought because she claimed that refusal to provide a reference was an act of victimisation as a result of the earlier claim. It was this act of victimisation which was the consdieration of the court - not what the actual act was. The case law therefore does not apply.

[JonCris]

I'm sorry but your not seeing beyond the case in that the OP can claim victimization if the allegations are not true OR at the very least can't be proven

[JonCris]

I'm working on the assumption that the allegations are not true whereas you are

[SarEl]

I'm working on the assumption that the allegations are not true whereas you are

 

No. I have made no such assumption at all. Victimisation is not unlawful - you are assuming that it is. Victimisation is not unlawful unless it is a result of an unlawful discrimination on the grounds established in law. Case law is a very specific type of law - it applies only when circumstances in cases are very similar. There are no similarities here. If you don't believe me, perhaps you will believe Thompsons (one of the leading firms in the country)

 

http://www.thompsons.law.co.uk/ltext/l0500004.htm

 

I quote - in their summation of the case you brought up " What happens after employment has ended can give rise to legal rights. Sex discrimination victimisation is definitively covered following the Coote case. The principle may extend to post employment victimisation for the exercise of other Directive rights. .....

With references, union officials may seek to negotiate a contractual right to a reference to avoid the problem of the lack of common law duty for an employer to provide former employees with references. But if the employer does give a reference he must take reasonable care in ensuring its accuracy."