Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.
How long have you worked there?
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Many thanks for your patience. If you have been continuously employed at your place of work for less than 2 years then your employment rights will unfortunately be somewhat limited. Most importantly, you will not be protected against unfair dismissal. This means that your employer can dismiss you for more or less any reason, and without following a fair procedure, as long as their decision is not based on discriminatory grounds (i.e. because of gender, race, religion, age, a disability, sexual orientation, etc.) or because you were trying to assert any of your statutory rights (e.g. requesting maternity/paternity leave, etc.). So what you have been advised is true I'm afraid – if they want to dismiss they can even if you have done absolutely nothing wrong or you have a defence for what happened.
If you wanted to resign then you would be expected to serve and work your notice period, otherwise you would be acting in breach of contract. However, in that time the employer could still proceed with the disciplinary and dismiss you. If you were to leave without giving the notice period required of you the employer can still mention in a reference that you left in breach of contract pending a disciplinary hearing. Whilst not as bad as a dismissal, employers can draw some inferences from this.
I would say in the circumstances it is best if you try to negotiate a mutually agreeable exit where they agree to let you go and drop the disciplinary against you. If they do not and you are either dismissed or have to leave, then your only rights will be in relation to the references you get from them and there are certain legal principles they have to adhere to and which you can potentially challenge if the contents are misleading.
This is your basic legal position. I have more detailed advice for you in terms of the references they provide about you, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Thank you. Whilst there is no legal obligation on employers to provide a reference for past employees, if they choose to do so they will automatically owe them a duty to take reasonable care in its preparation. This requires the employer to be accurate in the contents of the reference and ensure it is based on facts, rather than just personal opinion.
Certain principles have been established through case law over the years and the main points can be summarised as follows:
1. In the case of Bartholomew v London Borough of Hackney the employer provided a reference which contained details of disciplinary proceedings which were pending at the time the employee left. The court decided that the employer had not breached its duty of care by providing such a reference as it would have a duty 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 a reference that was not unfair or misleading.
2. In the later case of Cox v Sun Alliance Life Ltd the employer provided a reference that contained details of an employee's alleged misconduct. However, they did not properly investigate these before providing the reference and the employee challenged the information in it. The court decided that an employer will be negligent in providing a reference 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. This can be applied to other matters forming part of a reference, not just issues of misconduct.
So if it is obvious that incorrect facts have been relied on, the contents are false or misleading, there may be a potential case for negligence against the employer and this matter could be taken further by seeking compensation in the county court for any damages caused.