Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.
Please can you tell me the basis upon which the prospective employer has deemed the reference inadequate? Also, what reason has the previous employer provided for stating that they would not re-employ you? Thank you
Hi there. Thank you for your response and for the live phone call request. I am unable to talk at the moment but please do provide the information requested. I will then review the relevant laws and information and will get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Also, please do not responded to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you.
Hi just to confirm before I reply - do you still wish to proceed with the written response for which you will be charged? The phone call has not been accepted so there will be no charge for that.
Thank you. First of all there is not really a data protection issues necessarily unless you know what actually happened with your file. The employer is not legally obliged to retain your file for any specific period of time after you leave so they could have simply destroyed it and not made it clear to everyone that may have access to it that this was the case. So unless you can show that it has not been stored securely and gone into the wrong hands it would be very difficult to try and argue any breach of data protection, let alone claim for it.
As to the contents of the reference, the only issue would be the comment not to re-employ you. The rest they are allowed to include because they can be economical with the facts if they wanted to and can only provide basic details if that is what they want. In fact they do not even have to provide a reference.
So in relation to the comment, you have to be realistic with a defamation claim as that is certainly not as easy as one may assume. It will cost you upwards of £10,000 to make such claim and you also have to consider that whether the party alleged of making the defamatory statement can defend the claim. Even if you satisfy the criteria to prove the statement was defamatory it could be defended on a number of grounds, including by providing evidence that the statement was substantially true or an honest opinion.
If the referee does provide a reference, then it owes the subject a duty to take reasonable care to ensure the information it contains is true, accurate and fair, and does not give a misleading impression. Referees must therefore be able to justify and support any comments made in a reference and show either that they are true or that they honestly believe that the contents of a reference are true. So instead of defamation you may consider suing for negligence instead, if the comments they made were negligent and not being able to be backed up by any objective evidence.
This is your basic legal position. I have more detailed advice for you in terms of the steps you must take to proceee with this, 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
Thank you. Ultimately you are going to be seeking compensation for any losses caused by their alleged negligence. Whenever a dispute arises over compensation owed by one party to another, the party at fault can be pursued through the civil courts. As legal action should always be seen as a last resort, there are certain actions that should be taken initially to try and resolve this matter informally and without having to involve the courts. It is recommended that the process follows these steps:
1. Reminder letter – if no reminders have been sent yet, one should be sent first to allow the party at fault to voluntarily settle this matter.
2. Letter before action – if informal reminders have been sent but these have been ignored, the party at fault must be sent a formal letter asking them to resolve this amicably within a specified period of time. A reasonable period to demand a response by would be 10 days. They should be advised that if they fail to do contact you in order to resolve this matter, formal legal proceedings will be commenced to pursue the compensation due. This letter serves as a ‘final warning’ and gives the other side the opportunity to resolve this matter without the need for legal action.
3. If they fail to pay or at least make contact to try and resolve this, formal legal proceedings can be initiated. A claim can be commenced online by going to www.moneyclaim.gov.uk. Once the claim form is completed it will be sent to the other side and they will have a limited time to defend it. If they are aware legal proceedings have commenced it could also prompt them to reconsider their position and perhaps force them to contact you to try and resolve this.
Whatever correspondence is sent, it is always advisable to keep copies and use recorded delivery so that there is proof of delivery and a paper trail. The court may need to refer to these if it gets that far.