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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50157
Experience:  Qualified Employment Solicitor
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About 11 months ago my sister worked local nursing home

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About 11 months ago my sister worked for a local nursing home with a 6-month probation period.
Towards the end of the 6 months there was an allegation of financial impropriety as some petty cash allegedly went missing from a safe while the key was in her safe-keeping. She had asked that the police be involved but the employer did not pursue the matter and asked that she attend a disciplinary hearing. There she professed her innocence. Eventually it was determined to terminate her contract, but no admission of guilt was made and no specific reason for terminating the contract was given. She had not been informed of a disciplinary ruling against her; had this been the case she would have continued to pursue any avenue to attest her innocence. Clearly there was not conclusive evidence of her involvement (and at least one other staff member with a grievance at that time had opportunity and was absent unexplainedly in the immediate aftermath).
Now some 4 months after leaving this position she has applied for another job and been successful in her application subject to references, in an unrelated industry. However her prospective new employer has now withdrawn the offer on the basis of her previous employer's reference. When pressed by her agent, the new employer has stated that the reason was the financial impropriety cited on that reference.
She insists that she is innocent of any wrongdoing and has acted in accordance with her immediate manager's request in all regards. As the police have not been involved she has been denied the stringent test of the law to ascertain her innocence and/or the lack of any evidence against her. Now she has suffered the indignity of the besmirching of her name and the opportunity to make an honest living with a new, unrelated job when no disciplinary meeting has concluded her culpability.
Is there any recourse available to her? Has her former employer acted correctly in citing such an unproven allegation in a reference?
It may not be relevant, but this former employer has a record of terminating the contract of staff taken on in this capacity immediately prior to the 6 month probation period ending; my sister had been warned this would almost certainly be the case and so it proved.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. 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.
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