Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. Do you think these files still exist?
Hi sorry I have been in and out of tribunal today. The difficulty with getting the information you believe is missing is proving that it actually exists and even then – you cannot physically force the employer to disclose it or send someone in there to look through their files to ensure that they have disclosed everything they have. Even if this goes to court, all a court can do is issue an order requiring them to disclose the documents, but you are then still relying on the employer’s honesty to ensure that they are actually disclosed.
In terms of references, 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.
This is your basic legal position. I have more detailed advice for you in terms of the steps you can follow if you want to pursue them for negligenc, 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
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Hi there, they should not mention the reference unless specifically asked about historic disciplinary issues by the new employer. But you are correct that the issue of proving what has been said over the phone, in private conversations, is very difficult. Sadly people can get unofficially ‘blacklisted’ rom certain industries through word of mouth and with the lack of any evidence it can be very difficult to challenge that.
As to the missing documentation, the fact that you have evidence of it being in existence in the past does not guarantee that it is still there – for example, it could have been destroyed in the meantime. In terms of retention of records there is actually no specific time for which they must be retained. It is recommended that they are kept for 6 years bit not a legal requirement so there would be no breach of data protection if they had removed them, as long as they were destroyed securely – the breach would be if they had not done this and it ended up in the wrong hands.