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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47907
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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This is quite lengthy so I will put this in short, for the

Resolved Question:

this is quite lengthy so I will put this in short, for the first time in my career I'm facing Gross misconduct dismissal, I have a disciplinary hearing on Friday and I have also considered for sometime to hand in my resignation but a fraction to late, when I hand my resignation in - if they accept will I now have a bad reference?
Assistant: Where are you located? It matters because laws vary by location.
Customer: Tyne and wear
Assistant: Has anything been filed or reported?
Customer: Its a case my word against my manager as she has the right to bully people in the workplace and in the passed been advised not to go forth with any allegations so because I handed in a 7 day self cert without prior contact of doing so and before the end of my cert period I was handed a letter from work suspended on full pay - I took time off due to the amount of stress from her constant attitude
Assistant: Anything else you want the solicitor to know before I connect you?
Customer: I just want a good reference as I have worked really hard over the years and because of one person I feel it will impinge on my career delevopment
Submitted: 1 month ago.
Category: Employment Law
Customer: replied 1 month ago.
Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call.
Customer: replied 1 month ago.
Let me know if you need more information, or send me the service offer(s) so we can proceed.
Customer: replied 1 month ago.
oh I don't have a representative to attend but just don't to face my manager again
Customer: replied 1 month ago.
Also in addition I have only worked for this organisation for 1 year and 5mths
Expert:  Ben Jones replied 1 month ago.

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

Expert:  Ben Jones replied 1 month ago.

Have you discussed a reference with them yet?

Customer: replied 1 month ago.
No - it started out as an informal inquiry as of the 31.7.17 which notified me that I was to be suspended from work with full pay therefore I didn't go back to the doctors after my self cert - but in the meantime I was ask to come in last week as I wasn't on the sick from the 1.8.17, three 3 day Wed - Fri so that I could prepare July 17 accounts for an upcoming AGM. I was hand delivered a letter yesterday going to disciplinary.
Expert:  Ben Jones replied 1 month ago.

Thank you. You can resign at any time but you would be expected to work through your notice period with them first. The issue with that is in the meantime they can still proceed with the disciplinary and potentially dismiss you before your resignation notice expires.

If you wanted to leave amicably, for example to be released from the requirement to work your notice and in turn they also drop the allegations, you would have to negotiate that directly with them. You can agree on a reference as part of that if needed, but you cannot force them to agree to not issue a reference or to issue a positive one.

As far as the law on references is concerned, in general, there is no legal obligation on employers to provide a reference for past employees, with the only exceptions being if there was a contractual obligation to do so or for very limited types of roles in the financial sector. It would also be discriminatory if a reference is refused because of someone’s age, gender, race, religion, disability, sexual orientation.

If an employer decides to issue a reference, they will automatically owe the subject 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 true, accurate and fair and does not provide a misleading impression.

Certain principles have been established through case law over the years when assessing the duty of care owed by the employer, as follows:

1. The main test is from the case of Lawton v BOC Transhield, which requires a court to ask whether a reasonably prudent employer would have expressed the opinions which were stated in that particular reference and to ensure the accuracy of the facts upon which any opinion expressed in the reference was based.

2. In the case of Bartholomew v London Borough of Hackney the employer provided a reference which contained details of disciplinary proceedings 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.

3. In the 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 a reasonable investigation and had grounds for believing that the misconduct had taken place. Conversely, had they referred to the alleged misconduct but stated it had not been investigated, it would have been acceptable as that would have been a fair and accurate description.

As mentioned, it is best to try and agree on a reference before you leave but if that is not possible then they can still issue a reference subject to the principles outlined above.

I trust this has answered your query. Please take a second to leave a positive rating by selecting 3, 4 or 5 stars above - this is an important part of our process and recognises the time I have spent assisting you. If you still need me to clarify anything else, please reply on here and I will assist as best as I can. Thank you

Ben Jones and 2 other Employment Law Specialists are ready to help you
Customer: replied 1 month ago.
Hi Ben,That's brilliant but obviously in line with my career progression if they don't agree the bot***** *****ne is I'm left facing a disciplinary reference.
Expert:  Ben Jones replied 1 month ago.

That could potentially happen. Hopefully you can come to an agreement with them though, unless they bear some big grudge most employers would just agree to issue a basic reference at least