Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. When you say about the employer writing it up do you mean taking formal action against you?
Customer: Thank you for your response. Not formal action (it wasn't as serious as all that) but recording it in my HR file in a way that could affect my reference or appraisal, even though I was told at the time no record would be made of it because it was so minor.
Customer: the reason ai mention it now is because it was mentioned in the letter to my GP which suggests that it was recorded somewhere, even though I had been told it wasn't.
Ben Jones :
thanks for clarifying, would you mind if I get back to you on this tomorrow. Due to the late hour I will be going offline shortly as I have to be in practice tomorrow so you will get a kore considered response if I deal with it in the day? Thanks
Customer: Certainly. Thank you for your time.
Ben Jones :
Many thanks for your patience. An employer can correspond with your GP about your condition, although they should keep you in the loop during that process. They can challenge a diagnosis or other information given if they genuinely believe that it may be incorrect, however as the employer is not a medical practitioner then the GP’s report and diagnosis should take precedence. If the employer disagrees with it then they can request that you attend an independent occupational health practitioner to get a third party’s opinion.
The employer should also not have divulged other information about you without your consent, such as the incident that they referred to. This is not necessarily confidential information that would be protected under the Data Protection Act but they owe you a general duty of trust and confidence. Therefore, if that incident had not been previously in the open, they should have asked you for your consent before disclosing it to a third party.
There is nothing stopping the employer keeping a file on you with information of issues or incidents, but you should be given access to that if you request it. If it is negative information where for example you could have provided an explanation or defence and not necessarily a factual matter (i.e. there is no black and white evidence, rather it is one person’s word against another’s as to what happened), then you should have been given the right to defend yourself before it is used against you, such as in a reference.
Finally, when expressing personal opinions in a reference the employer has to be very careful that whatever they say is backed up by some factual references. If they provide a reference based purely on personal opinions and that goes against formal medical diagnosis, then t can be a negligent reference and the option of challenging that legally exists. However, before any legal action is considered you are always advised to try and resolve such matters internally, most commonly through the internal grievance procedure.
Hope this clarifies your position? If you could please let me know that would be great, thank you
Customer: Thank you for providing such a thorough answer. With regard to the second paragraph of your answer, can you refer me to any specific area of the law that says they owe me a general duty of trust and confidence? I would like to be prepared when I speak with them.
Customer: i did agree that they could write to my GP to ask for an update on my health, but they didn't say at the time that they were going to raise specific issues with him.
Customer: on an unrelated note, I have not used this site before and when I tried to rate your response it wouldn't let me. Is that because you need to close the conversation first?
Ben Jones :
this is not contained in a specific law, it is an implied term that exists through common law - it exists in every employment relationship, it's a basic fact in employment law
Ben Jones :
as to the rating you should be able to do so now, I just wasn't sure if you needed further assistance before leaving?
Customer: No that's fine,Ihave everything need now. Thank you again for your assistance.