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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49779
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I handed my employer my notice of resignation on 5th

Customer Question

I handed my employer my notice of resignation on 5th September 2017. The notice period was 8 weeks - ending on 31st October 2017. My employer sent me a notice of investigation for gross misconduct on Saturday 28th of October 2017 and invited me to an investigative meeting on 30th of October. I didn't go. I haven't heard back from them. I think they just want to put a note on my employee file (out of spite) that I was under investigation for gross misconduct when I resigned - in order to spoil any chance of me finding another job.Is there anything I can do o stop this ? Is it worth taking legal action ?
Submitted: 4 months ago.
Category: Employment Law
Expert:  Ben Jones replied 4 months ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Expert:  Ben Jones replied 4 months ago.

So how long had you worked for this employer for?

Customer: replied 4 months ago.
Three years with this office - another three years with the same group - I was tupee'd into the group from a council where I had started in 1990 - so my continuous service is 27 years.
Customer: replied 4 months ago.
My home telephone is 0113(###) ###-####but any call should be after 3:30pm
Expert:  Ben Jones replied 4 months ago.

OK, thank you for your response. I am unable to call at this present time, however leave it with me for now and I will review the relevant information and laws and 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 respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you.

Expert:  Ben Jones replied 4 months ago.

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.

Please take a quick second to leave a positive rating for the service so far by selecting 3, 4 or 5 stars above. I can continue answering follow up questions and in particular can also discuss the options you have on challenging this in the future if necessary. There is no extra cost for this - leaving your rating now will not close the question and means we can still continue this discussion. Thank you

Expert:  Ben Jones replied 4 months ago.

Hello, I see you have read my response to your query. Please let me know if this has answered your original question and if you need me to discuss the next steps in more detail? In the meantime please take a quick second to leave a positive rating by selecting 3, 4 or 5 stars above. The question will not close and I can continue with my advice as discussed. Thank you

Expert:  Ben Jones replied 4 months ago.

Hello, not sure if you are having trouble seeing my posts? Do you need any further assistance or are you happy with the response to your query? I look forward to hearing from you. Thanks