Hello, my name is Ben and it is my pleasure to assist you with your question today. What did the old boss say exactly?
He said that she had her employment terminated due to being in breach of safeguarding policy which she has always denied.
Whilst not an official reference the same principles will apply as this is effectively information supplied from one employer to another.
The law requires an employer to owe an employee a duty to take reasonable care in the preparation and dissemination of such information. This basically requires the employer to be accurate in its contents and ensure it is based on facts, rather than personal opinion.
For example, in the case of Bartholomew v London Borough of Hackney the court decided that the employer was not in breach of its duty of care to the employee by providing a reference which contained details of disciplinary proceedings which were pending when the employee left. An employer is under a duty of care to provide a reference that is true, accurate and fair and does not present facts so as to give a misleading impression overall. Therefore, if the employer had not included details of the disciplinary proceedings it would have failed in its duty to the prospective employer to provide information that was not unfair or misleading.
In the later case of Cox v Sun Alliance Life Ltd it was decided that an employer will be negligent in providing information to a new employer that refers to an employee’s misconduct unless the employer had carried out an investigation and had reasonable grounds for believing that the misconduct had taken place.
If some of the above conditions are met, the employer is unlikely to be acting unlawfully or negligently and can provide the information in question. However, if it is obvious that incorrect facts have been relied on, the contents are false or evidently misleading, there may be a potential case for negligence against the employer and this matter could be taken further by seeking compensation due to negligence in the civil courts.
If you have any questions please post them here, I have some scheduled internet maintenance and my connection will probably drop but I will respond as soon as I am back online, thank you
Thanks Ben. I guess it would be very difficult now to ascertain what was actually said from a telephone call as people can always dispute. I guess it would be hearsay would that be right?