Personnel Record Query

[Bonkersadult1]

Hi,

 

Would appreciate some advice on the following matter.

 

I was dismissed for some other substantial reason several months ago and am now negotiating the terms of the COT3 agreement with the Respondent.

 

I agreed to a low settlement award (less than two months salary) on the basis that the dismissal was overturned and the reason for leaving was changed to "by mutual agreement". The Respondent has come back and said that to do this would be misleading and will instead adhere to the standard reference upon any enquiry from any prospective employer.

 

My queries are:

 

1) from a HR perspective, how would this affect me going forward?

 

2) Is this is a reasonable agreement for me? I do believe that I have a strong case.

 

3) If this is not a fair agreement - please could you advise what I should be asking for?

 

Many thanks

[BRIGADIER2JCS]

I think the employer is correct, they cannot mislead prospective employers as to you reason for leaving the company.

The standard response is what I would expect in this situation.

 

You could perhaps negotiate a higher financial deal.

[Emmzzi]

Standard reference would be ok for me. However it also depends on the profession; eg in finance they may have a legal obligation to disclose fraud if asked, for example. So they cannot negotiate it.

 

What line of work, and what "other substantial reason"?

[Bonkersadult1]

Thanks for your prompt reply.

 

Sorry - what I meant was that in return for a low settlement I wanted the Respondent to agree that the original dismissal was overturned on review (without any admission of liability) and put in a new reason of "by mutual agreement" as I wouldn't go back to work for a company that treated me so badly.

 

Could I ask for this instead?

 

Thanks

[Emmzzi]

can you answer my question first please?

 

industry, and reason for dismissal

[Emmzzi]

Can I also check - last time you posted you had a lawyer. What do they say?

[Bonkersadult1]

The industry is IT and the reason for dismissal was for some other substantial reason.

 

Thanks

[Bonkersadult1]

My lawyer is sitting on the fence and saying that if I am not happy then I shouldn't go ahead.

[Bonkersadult1]

The Respondent said that they had two client complaints where the clients did not feel happy with me and so due to under capacity, they were dismissing me for SOSR.

[Emmzzi]

Ok, So personality clash and nothing involving any kind of fraud or assault or suchlike?

 

I would go for an agreed reference which gives a little more than standard. I am sure they can compliment your skillset without going into huge detail over customer management skills.

[Emmzzi]

PS the one time I had an agreed reference I wrote the draft of it myself and let them edit it. much quicker.

[Bonkersadult1]

No - there was no fraud. I worked on the client accounts for over one year each and then the clients turned around and said that they didn't like me and wanted someone else to work the account. I was basically the patsy for the client's grievances against the company.

 

It has been suggested to me that instead of going for "leaving by mutual agreement", I should go for a cast iron clause which prevents the Respondent from disclosing the dismissal, making any reference to the dismissal (inferred or otherwise) and will only adhere to the standard reference in all cases.

 

Is this a good idea?

 

Thanks

[Grotesque]

I do not think they could legally do that without leaving themselves liable to a suit from a subsequent employer. E.g., if something happened and they felt it relevant.

[Emmzzi]

Suggested by whom? I'm guessing not your lawyer! Always consider who is telling you what.

[Bonkersadult1]

I asked a friend who is HR manager in a multinational company and she suggested it.

I ran it past my lawyer who also thought it was ok.

[Emmzzi]

I asked a friend who is HR manager in a multinational company and she suggested it.

I ran it past my lawyer who also thought it was ok.

 

The reference process involves humans. No idea how you make that cast iron. I also can't see an incentive for the employer who seems t to already have refused an agreed reference.

 

You can ask...

[steampowered]

I'm not sure what you are hoping to achieve by having "leaving by mutual agreement" written on the reference. It looks and sounds rather odd to me. In most circumstances an employer would not usually describe the circumstances under which the employee left, they would normally just confirm the dates of employment.

 

To my eyes "left by mutual agreement" makes it sound like you got a compromise agreement, which is not a great first impression. Personally I would just settle for a standard reference.

[Sidewinder]

Agree entirely - 'left by mutual agreement' smacks of 'sacked but we agreed not to say so in as many words'

 

Much better to say that you left to pursue other opportunities or (since it is in part the truth) that your position could no longer be guaranteed due to a downturn in work.

[Bonkersadult1]

Thank you for your replies - it's much appreciated.

 

To clarify, I had initially asked that the the reason for my leaving on my personnel record to be amended to "by mutual agreement". The respondent declined as they said that this would be misleading and leave them open to potential claims from other employers. I accepted this would be misleading.

 

The Respondent offered a standard reference. I was happy to accept this but was concerned that if a verbal reference or form was sent to them for a reference that they should adhere to the standard reference only and there should be no negative inference in their responses.

 

This is what was suggested to me by the HR Manager friend of mine. My Lawyer also thought it was fine and has suggested the following wording:

 

The Respondent will provide, upon receipt of a written request from that party to do so, to any employer, employment agency or prospective employer of the Claimant, a reference in respect of the Claimant in the agreed form as set out in Appendix 1 and the Respondent agrees that no reference will be made either directly or indirectly to the Claimant’s dismissal, reason for dismissal and surrounding circumstances of her dismissal and will deal with all oral enquiries for a reference in a manner consistent with that reference.

 

For the avoidance of doubt, in all situations where information regarding the employment of the Claimant by the Respondent is requested by a third party, the Respondent will only refer to the attached reference.

 

I would be grateful if you could advise if:

 

1) the wording is robust enough

 

2) if this is the position that I should be pursuing?

 

Apologies in advance for my ignorance.

[Emmzzi]

I am curious as to why you think a load of random internet strangers will have a more valid opinion that your lawyer friend.

 

I would say "a manner consistent with" is woolly. I'd want a no matter what they are asked, they send this."

 

In turn I'd expect you to sign a "no slagging off he employer" clause.

[Bonkersadult1]

The HR person is my friend and the lawyer prepared the clause. My lawyer didn't have any standard wording for this clause and produced this clause.

 

I was just looking for a fresh perspective to ensure that it was robust enough.

 

Would there be any other clauses that I should look to include to protect myself?

 

Thanks

[steampowered]

I think your lawyer's wording is fine and is sufficiently robust. An alternative might be as follows:

 

On receipt of a request from a potential employer, the Company shall provide a written reference in the form set out in [schedule] to this agreement and any oral reference provided will be on no less favourable terms.

[Bonkersadult1]

Thank you for your feedback.

 

Are there any other clauses that I should have included in the COT3 to protect myself apart from the Respondent not pursuing me for legal costs?

 

Thanks

[steampowered]

Difficult to see how the Respondent could pursue you for legal costs once a settlement has been agreed. I guess you can ask for a clause stating that the Respondent will not pursue you for legal costs.