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How long ago did you resign from your previous job?
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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.
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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.
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