Tagged: references

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More on references

The previous post about references focused on what you could do about a bad reference.

Another question that arises is whether you can make a reluctant employer or former employer give you a meaningful reference at all – what can you do if they just say ‘It’s not our policy to give references’ or ‘It’s our policy only to give a factual reference confirming job title and dates of employment’?

Unfortunately, the answer to this will almost always be ‘nothing.’ For some employees at certain points in their careers, at least as much of the value of a particular job will lie in the experience gained as in the money earned. The value of the experience is significantly diminished if your former employer refuses to back you up with confirmation that your responsibilities were what you say they were and you discharged them satisfactorily. Nevertheless, although you have a clear contractual right to your pay, whether or not there was ever a contract in writing, you will only have a contractual right to a fair reference if you had the foresight – and the bargaining power – to write it into your contract when you started.

If you are about to start a new job, and you do feel confident enough to rewrite your contract of employment, you might try inserting something like this:

The Employer will promptly on request by any potential future employer of the employee provide a reference for the Employee confirming the duties undertaken by the Employee, commenting fairly on her performance of those duties, her attendance and her character, and referring as appropriate to her significant achievements in the post. The Employer will give the Employee the opportunity to read and comment on a draft of the reference before it is sent. This clause survives the termination of the employment relationship.

You can tackle this kind of negotiation head on by asking for a meeting and/ or sending a draft amended contract to your new employer with an invitation to them to produce a final draft for your signature. Alternatively, you could try and take advantage of the kind of inertia that employers more often benefit from. Make your changes in manuscript on the contract you have been given to sign, sign it and send it back with a covering letter (keeping a copy of both, of course) saying something like ‘I enclose a signed copy of my contract, with certain amendments which I hope will be acceptable.’

The purpose of the covering letter is to make sure they can’t say later that they didn’t realise you’d made any changes: but if you’re lucky, the HR officer who receives your letter may just file your amended contract and leave it at that. If so, you can take it that your amendments are agreed.

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Bad references and what you can do about them

A good reference from your current or former employer can be extremely important if you are looking for a new job. In some circumstances the hope of a good reference that will allow you to go further will be a substantial part of the reason for doing a particular job at a particular time.

How can I find out if my employer is giving me a bad reference?

If you are offered a job ‘subject to receipt of satisfactory references’ and the offer is subsequently withdrawn, you can make a shrewd guess that an unsatisfactory reference has been provided.

Any temptation to try ‘mystery shopping’ by getting a friend to request a reference for you is best resisted. (Although tribunals often let snooping by employers pass without comment, there is something of a double standard in operation: they are likely to throw up their hands in horror if an employee uses subterfuge or deception to collect evidence.) A better method is to ask the recipient of the reference for a copy of it. An employer with a rudimentary sense of fairness may feel that if they’ve withdrawn a job offer to you because of a poor reference, you ought at least to be allowed to know what has been said.

If simply asking doesn’t work, you can make a subject access request to the recipient of the reference under the Data Protection Act. (Curiously, the organisation that provided the reference will not be required to disclose it because of a specific exception in the DPA.) Straightforward guidance on how make a subject access request is available from the Information Commissioner’s Office.

What can I do about a bad reference?

There are various possibilities, though their availability will depend on the circumstances:

  • breach of contract
  • negligence
  • victimisation
  • detriment in employment
  • defamation
  • breach of contract

    If you were still employed by the employer who has given you a bad reference at the time they gave it, then if the reference is unfair or misleading you can try arguing that giving it amounted to a breach of your contract of employment. There almost certainly won’t be an express term in your contract about references (though if on recruitment your negotiating position is strong enough to allow you to rewrite your contract, it wouldn’t be a bad thing to include one), so you will have to fall back on the implied term of ‘trust and confidence’ term: see TSB Bank plc v Harris [2000] IRLR 157.

    If your employment has ended by the time the reference is given, you won’t be able to rely on the trust and confidence term. In the unlikely event that you have managed to get an express term about references inserted into your contract of employment, you may be able to rely on that, provided the term makes it clear that this is a contractual obligation on your employer that survives the end of the employment relationship.

    The only other way you might have a contractual claim is if your employment has terminated or a claim arising out of your employment was settled on agreed terms, including terms as to the reference that will be given. If that is the case, then if you believe that your former employer has acted in breach of the agreement, you can sue for damages in the County Court.

    Negligence

    In Spring v Guardian Assurance [1994] ICR 596, the House of Lords confirmed that an employer or former employer owes a duty of care to the subject of a reference. If you can show that your former employer negligently included false or misleading information about you in your reference and you suffered loss as a result, you can sue in the County Court.

    Victimisation

    If you can show that the reason for the unfavourable reference is that you had previously brought a discrimination claim against your former employer, then the bad reference is an act of discrimination by way of victimisation (see glossary).

    Detriment in employment

    If you were still employed at the time the reference was given, and you can show that the reason for the bad reference was a protected disclosure one of the things mentioned at sections 43M to 47E of the Employment Rights Act 1996 (things like whistleblowing, and exercising various statutory rights such as the right to time off for jury service, or the right to request flexible working), then you can ask an employment tribunal to award you compensation for an unlawful detriment in employment.

    Defamation

    If your former employer maliciously gives out false information about you, you could in theory have a defamation claim. Proving malice is likely to be difficult, and in most cases where you might have a chance of showing malice, you will probably be able to show negligence more easily. A defamation claim in this context will rarely be a good idea.

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    Cross-referencing

    It is very common, in correspondence or orally, to need to refer to other documents, be they statutes, case-law or evidence. You will very rarely write anything that does not talk about other documents.

    It is well worth thinking about how you do this. Writing something like “Such and such was laid out in the company’s policy” can cause problems. Often the policy will be long, and there may even be more than one. Your reader will have to search through pages of documents to find what you are talking about. Even a short submission of a couple of pages, will probably refer to a dozen or so other documents at least, so these problems add up quickly.

    It can also cause difficulties for you, since you may well be asked “Where exactly is that?”.

    There are basically two ways of avoiding this problem:

    References

    Almost every document you will deal with in a case, will have a shorthand way of referring to it.

    • Documents in the bundle can be referred to by page numbers. Some documents also have paragraph numbers you can use.
    • Cases can be referred to by their case citation. You can use page numbers, paragraph numbers and marginal letters to give more precise references.
    • Witness statements can be referred to by paragraph numbers.
    • Statutes are referred to using the name of the statute and section numbers.

    Using these references is simple. For example,

    Mr White, at paragraph 6 of his statement, says that the bonus scheme was organised on a commission basis, bundle p78, para. 5.

    Many people like to put references in italics. This can be useful.

    Another useful technique, particularly when you will be referring often to the same source, is to indicate a default reference. For example, you might write at the beginning of a submission “Page references are to the bundle of documents, unless otherwise indicated”. This allows you to avoid writing ‘bundle’ repeatedly.

    Quotation

    Sometimes, it will be useful to quote from documents, rather than just providing a reference. There is no absolute rule as to when a quote is better that a reference. It is mostly a matter of common sense. Your aim should be to make things easy for the reader. If a quote will help them, put one in.

    In general, the more important a document and the more you want to say about it the more likely that a quote is sensible.

    Bear in mind that quotations break up what you are writing. Too many quotes will make it difficult to follow what you are saying, since you will keep stopping to insert a quote. The aim is to achieve a happy medium between giving your reader useful information and making your points concisely.

    A quotation should always have a reference attached, so that the reader can follow up the quote and see it in its original context.

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    Bad references

    If you suspect that your former employer is making it harder for you to get a new job by giving you an unfair reference, you can make a subject access request under the Data Protection Act for a copy of the reference. Straightforward guidance on how to do this is available from the Information Commissioner’s Office. If there is argument after you have won your case about whether you have done enough to mitigate your loss, it will assist you if you can produce copies of any poor references you have discovered by this means.

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    Disclaimers in agreed references

    Respondents will sometimes want to include a disclaimer in an agreed reference. Such a disclaimer will say something to the effect of:

    This reference is given in good faith, but without legal liability for actions taken on the basis of the information provided.

    The employee may, understandably, feel that this will undermine an otherwise good reference.

    To some extent this is true. A disclaimer does take some of the gleam from even the most glowing reference. Despite this, disclaimers are common and, like short, factual references, are more likely to be seen as part of the ex-employer’s standard practice than an indication of a problem. If an employer insists on a disclaimer, it should not be viewed as a deal breaker.