Thanks for your patience. Whilst the employer is unlikely to be able to say that you were dismissed rather than having resigned, they can still mention something in a reference as long as it reflects the truth. So if they did genuinely investigate you during your notice period and invited you to attend a disciplinary hearing, then it is possible to state this in the reference, although there are still some factors to consider.
For example, 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.
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.
So if it is obvious that incorrect facts have been relied on or the contents are false or misleading, the employee could consider taking the matter further.
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