Bad reference or bad luck?
Question
The organisation I work for is closing in a year's time and my contract won't be renewed. I was recently offered a new job, but two weeks later they told me they'd decided to recruit for a lower level position.
A colleague has since told me he thinks my director may be giving positive written references and following them up with negative verbal references - but this can't be proved. I'm not sure if this is illegal and if I should go to the union. I'm worried if I take things further it will damage my career.
I've always worked hard and have never had any negative feedback, so I don't know why this could have happened. I'm considering asking for an open reference so I can take it to any interviews - that way I hope there will be no chance of my director calling them to blacken my name. Can you advise me on what I should do?
Answer
It's understandable you're reluctant to involve the union, but it may be worthwhile talking to them on an anonymous basis to find out what the organisation's policy is on verbal references. This is because many organisations and companies have specific policies outlawing this practice. You should also be aware that it's not illegal to give a verbal reference, even if it's not good practice.
Under the Data Protection Act 1998, you aren't entitled to see a reference given by your employer. This is because there is an exemption from the need to disclose data for people who give references. However, you can ask your new employer for a copy of the reference because there is no exemption from the need to disclose data for people who receive references.
The Information Commissioner has issued guidance to help an employer to whom a reference has been provided to decide whether they should disclose that reference to the employee. The guidance states that:
- An individual is entitled to access information which is about them but is not necessarily entitled to information about other people, including their opinion of them;
- Information already known to the employee should not be withheld. Where it's not clear whether that information, including the referee's opinions, is known to the employee, the employer should contact the referee and ask them if they object to this information being disclosed;
- Even if a referee objects to information being disclosed, the employer should still disclose the information to the employee if it would be reasonable in all the circumstances to do so. They should take into account the referee's reasons for withholding consent and the potential or actual effect of the reference on the employee;
- In most circumstances, all or most of the information should be disclosed to the employee, particularly if it has had a significant effect on them, for example, by preventing them from taking up a provisional job offer;
- The employer should consider whether it's possible to conceal the identity of the referee;
- Information shouldn't be disclosed if there's a reasonable threat of violence or intimidation by the employee towards the referee.
So, it would be possible to ask for some information from the new employer and you could even ask why you have been unsuccessful. It is quite likely that when your director gave the verbal reference a note will have been made of what was said. You should be able to see this as well.
A reference given by one employer to another about an employee has 'qualified privilege'. This means that an employer will probably be able to say what they like about an employee. However, there are some limits. They must not:
- Give any information about convictions that are spent under the Rehabilitation of Offenders Act 1974 (Rehabilitation of Offenders (NI) Order 1978 in N. Ireland), unless the job in question is exempted;
- Maliciously make false statements;
- Negligently make a wrong statement. The House of Lords has decided that an employer giving a reference about an employee owes them a duty of care. This means the employer could be sued for negligence if the reference contains inaccuracies which result in the employee suffering a loss. The reference could also be defamatory. The Court of Appeal has held that employers are under a duty to provide references which are true, accurate and fair, and which do not give a misleading impression of the former employee.
Whilst you can ask for an open reference, many companies may not be willing to accept them. But of course each organisation will have its own procedures.
Good answer? Bad info? Want to tell us what you think? We'd really like to hear what you've got to say about this answer so please click here to take the survey. Your feedback is confidential and as anonymous as you like.
Question answered by CAB
Print this page Email this page to a friend Add to favourites
