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taratill
taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6307
Experience:  15 years experience of advising on employment law matters
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My teacher son went into school late one morning after having

Resolved Question:

My teacher son went into school late one morning after having a couple of drinks the night before with a university friend he had not seen for several years. He telephoned the school to inform them he would be late, met by the headteacher and sent home as looked disheveled and smelt of drink. Interviewed next day by headmaster and school manager (his PA) and told he was going to sack him but if he went "quietly" he would give him a good reference + 3 months pay. He declined. A couple of days later my son went on a cycling holiday, had a near fatal accident resulting in severe brain injury and spent 4 months in hospital. He has been off work for 16 months and will be for at least a further 12 months and possibly longer. It is possible he will not be able to return to teaching. The school have offered him terms to leave but on his reference want to included "A concern was raised regarding Richard at the end of the summer term 2013 and a disciplinary investigation was pending". Can they do this as no investigation/conclusion.
Submitted: 2 years ago.
Category: Employment Law
Expert:  taratill replied 2 years ago.
taratill :

Hello my name is ***** ***** I am happy to help you today.

taratill :

They can put anything that is truthful into a reference and as this is truthful there is nothing, at law, to prevent them from including this.

taratill :

However that is not to say that they may be willing to amend or agree different wording in order to settle the matter.

taratill :

I am sorry that your son has had such a dreadful accident.

Customer:

That is the problem as I see it. There has been no full investigation and at this moment is an allegation without conclusion.

Customer:

I understand that one has to be very careful in putting any allegation in writing that has not been proven.

taratill :

Hi under the circumstances it is a bit mean of them to try to include that wording but they are not saying he has been found guilty just that there was an investigation ongoing, which is truthful.

taratill :

The are only prevented in law (negligent misstatement and defamation laws) from saying something factually incorrect.

Customer:

Not really, as he did receive the promised "good reference" from the headmaster on 27/08/13 but since the LEA seem they want to go down their route.

Customer:

From Employment Guidelines on net I found these statements


"Employers often question whether they should refer to any alleged misconduct on the part of the employee during his/her employment. If there has been no investigation and/or conclusion of the matter then it would be unwise to comment on the alleged misconduct in the reference".


" Not comment on alleged misconduct where there has been no proper investigation"
taratill :

Unwise but not unlawful is absolutely the position. They cannot be stopped from saying something truthful as I have already stated. They may be willing to negotiate aternative wording.

taratill :

I realise that this is not the answer you wanted but it is the legal position.

Customer:

Could you suggest a line for me. I am only trying to help my son in future to possibly get a teaching post in a couple of years if he is up to it.

taratill :

The only thing you can do is ask them to remove the wording. If they are not willing to then you do not need to accept the settlement , although they would be able to fairly dimsiss him then on the basis of capability.

Customer:

I obviously will but is there a one liner you could suggest "without prejudice"

Customer:

Are you still on-line?

taratill :

yes I just had to take a call.

Customer:

Sorry

taratill :

I'm not sure that the words 'without prejudice' will help you. You could write to them to say that you think that their insistence on including the wording goes against the principles of 'natural justice' and that as a public sector employer you are surprised they are willing to act against those principles given your son's inability to defend himself or partake in any disciplnary proceedings. You could threaten to bring it to the atttention of the council's legal team and / or a local councillor. That might make them think again.

Customer:

Great, and thank you very much. I will pay for your advice and thank you for your time

taratill :

No problem all the best with it and I hope your son makes a good recover.

taratill :

recovery.

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