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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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If a previous employer has stated in a letter that if a

Customer Question

If a previous employer has stated in a letter that if a reference is requested from them they will be putting "resigned while pending investigation for allegations of breech of confidentiallity" but then stating they have decided not to proceed with the investigation. Can they still put that in the reference ???
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Customer: replied 1 year ago.
ok thank you
Expert:  Ben Jones replied 1 year ago.

How long ago did you resign from your previous job?

Customer: replied 1 year ago.
On Friday
Expert:  Ben Jones replied 1 year ago.

OK, thank you for your response. I will review the relevant information and laws and will get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Also, please do not responded to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you.

Expert:  Ben Jones replied 1 year ago.

Apologies for not getting back to you sooner, I experienced some temporary connection issues and could not get back on the site until now. All appears to be resolved now so I can continue dealing with your query.

If that is what actually was the case at the time of resignation, then the employer can potentially still state tat in a reference. So if when you had resigned you were indeed pending these investigations, that is a factually correct statement should they decide to include it in a reference. They do not have to proceed with the investigation to full completion to be able to mention that – in fact if someone is investigated but then resigns midway through the investigation, often the employer may decide not to proceed further as it would be pointless, as the employee is leaving anyway. That does not mean they are now innocent and this is only done for practical reasons.

Saying that, if the reason the investigation was dropped was because the employer has found out that the allegations were unsubstantiated or untrue then they should not mention the statement in a reference as doing so could be negligent and misleading. There is some case law which deals with such situations which I can discuss with you so you know what the courts think about it.

This is your basic legal position. I have more detailed advice for you in terms of the case law on references, 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

Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
Thank you for getting back to me. If the investigation is all on hear say and there is no evidence to support it only word of mouth what happens then ?
Expert:  Ben Jones replied 1 year ago.

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.

Customer: replied 1 year ago.
This is a really tricky one. I work at a school where a TA has recently been suspended and been to court for grroming a teenage boy under 16 and performing a sex act on him. It has been in the national papers. We were told about it at work not who or what but just that we were going to read about it in the press. I knew about it already as my daughter was on the trip that this happened on and is freinds with the boys sister who told us all everything that happened. We were asked not to talk about it. However I did speak about to a friend of mine after the papers had been printed and someone must of overheard and then reported me to the school and that is what the investigation is for. I resigned as there have been a few things occur while i have been there 8 years and this just tipped it for me.
Expert:  Ben Jones replied 1 year ago.

yes it is tricky but from a strict legal perspective, you did breach confidentiality when asked not to and were under investigation for it at the time of resignation so the employer could potentially include it. However, you may wish to approach them and just ask that they do not do so - plead with them that there is no need to include this and potentially ruin your career when you have left them and just allowed them to move on