UKH

Hi folks ~ never thought I would be asking for advice on UKC, but it is urgent, so please..... can only qualified people reply....

An acquaintance of mine (yes, genuinely!) applied for a job and gave two referees. She received a glowing reference from her current employer. The other referee, whom she thought she could trust, and whom she thought is a decent, straight up kind of guy (though many other people, including me, know better), due to his spineless nature, referred the reference request to my acquaintance's previous employer (where the spineless referee is a Director). Hope I am making this clear enough..... the previous employer gave a hugely negative, hugely false and damning reference (I am not surprised by this because I know the person who wrote this reference, and believe me, I would happily drive over that person's head back and forth 479 times before I got bored, and I'm NOT a violent man.....)

Result: she didn't get the job.

Yes, I know the organisation she applied to should perhaps have requested a third reference for balance, and shouldn't have accepted the reference as it wasn't from the named referee.

Questions:
.....the organisation she applied to accepted a reference from someone that actually wasn't the named referee. Does she have a legal case against the organisation she applied to / against the person who wrote the reference?

Also, are there any legalities about giving damning, negative references (I know this has been done before but I don't have time to trawl back through the forums).

Thanks in advance for any help (I just won't have time to thank any replies individually)

Pete

In reply to Peter Leeming:

"The other referee, whom she thought she could trust, and whom she thought is a decent, straight up kind of guy (though many other people, including me, know better), due to his spineless nature, referred the reference request to my acquaintance's previous employer (where the spineless referee is a Director). Hope I am making this clear enough"

Not really

Due his spineless nature he referred it back to a previous employer where the spineless director is a Director.

So there are two spineless people, or just one?

In reply to Peter Leeming:

Must be fair and accurate:

https://www.gov.uk/work-reference

In reply to Peter Leeming:

https://www.gov.uk/work-reference

Hope this helps at least a little?

In reply to AlisonSmiles:

Thanks

In reply to MtnGeekUK:

Thanks

In reply to Peter Leeming:



Highly unlikely. They have requested a reference from an individual, who has provided it from the organisation he represents. That's not an unreasonable thing fo rthem to do.


Yes. If it's untrue then it's defamation - and your friend would be able to show loss, given that they were otherwise offered a job.

The key issue will be whether your friend is able to obtain a copy of the reference. If they can't and this is based purely on "one of your references was poor" then it's hard to make stick. If they can, then it may be worth them consulting a solicitor. However, if your friend left the other organisation under a cloud and the organisation has highlighted areas of problem, that is not necessarily unbalanced (in their view).

Source: we have clear guidance about giving references that highlight what can and can't be said to avoid getting into trouble. In general best to provide a verbal reference and only facts on paper.

So: Worked from X to Y; salary £Z; was in such and such role; Sickness record; disciplinary record; appraisal ratings - all ok. Opinions on working style (unless evidenced in appraisal record or similar), in-work relationships, mental ability, work ethic, etc. - not ok

In reply to ThunderCat:

Sorry..... only one but doubly spineless!

In reply to JJL:

Many thanks!

In reply to Peter Leeming:

As time is of the essence here has your friend contacted the organisation she wants to work for explaining the situation, telling them that she believes the second reference was malicious and appealing to them to give her the benefit of the doubt by obtaining a third reference? If her current employer was so supportive that must indicate to them that she is worth reconsidering.

Going down the legal route of taking action against these "spineless"* would take a long time and won't get her the job she obviously wants.

* Sorry I am also confused as to the number of "spineless" people who are involved in these references.

In reply to Trangia:

Yes, yes.... thanks!

Sorry, only one spineless but doubly so..... !

In reply to Peter Leeming:

What is missing from the UK Gov link is that you can ask and should be given a copy of the reference - but for reasons I won't explain you have to ask the person/company who wrote the reference and they are obliged to give it to you. You can ask but there is no obligation on the person who received the reference to disclose the contents to you.

To have any legal hope of claiming loss she needs that reference AND evidence that she suffered some loss because of the false reference. The loss is likely to amount to the money she would have received had she been employed and then lawfully dismissed immediately (ie how much notice the new employer contractually would have given her)
(However, on this I'm willing to be guided by newer up to date case law - which may be now, more than I've quoted)

The relevant legislation in terms of obtaining the reference from the person who gave it is the Data Protection Act 1998 section 7 (subject Access). Make the request in writing. The company is entitled to ask for a 'reasonable' fee for doing so and must reply within 40 days of receiving the request.

As I understand it the company who gave the false/inaccurate reference was also in breach of the DPA because you had not given your permission for the reference.

You may also wish to report this to the Data Commissioner - have a look on their own website.

Ex Employment law advisor.

In reply to Peter Leeming:


hehe, fair enough.

I was always led to believe that you could either give a positive reference, or a non-committal 'this person worked here from x to y and did so and so'

In reply to ThunderCat:


There is nothing to prevent you giving a negative reference so long as it is fair. As others have stated, though, references can't be confidential these days, and thus people often take the cop-out of giving a non-committal reference rather than a negative one.

In reply to ThunderCat:

With the exception of a FSA employment there is no obligation to give a reference.
However:-

a) if you do it must be truthful and accurate.

b) It need not directly answer a future employer's questions

So this is also acceptable:-
c) Joe Bloggs worked here for six weeks. He was regularly late, lazy, rude to senior staff and did not fit in with our expectations although he was an accurate widget operator and got on well with his workmates.....etc.,)

(Provided), it is truthful, balanced and doesn't just concentrate on only his bad points

d) Joe Bloggs worked here for six weeks. He was regularly late, lazy, rude to senior staff and did not fit in with our expectations.

is unacceptable as it is not an accurate and/or balanced view.

e) "Who so ever employs Joe Bloggs will get the employee they deserve"
This too is probably acceptable. It is truthful and also non committal. It says everything and nothing.

In reply to Dave Perry:

Many, many thanks for your detailed response, Pete

In reply to Peter Leeming:

I once got a reference for an applicant which slagged the girl off, it basically came across as an office relationship gone wrong, she didnt get the job, and wouldn't have anyway, but I called her personally and told her to never include the reference from that person.
I just think believe in karma..