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Ben Jones
Ben Jones, UK Lawyer
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Experience:  Qualified Solicitor
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I requested my HR file from my former employer in December

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I requested my HR file from my former employer in December 2015 as I have had difficulty gaining a new job in my sector since being made redundant and I wanted to see what information my former employer had kept that may be resulting in an unsatisfactory reference, as I left on difficult terms - for example I had lodged a grievance regarding bullying over time off for a health issue covered under the Equality Act, they retaliated (in my view) by putting me through a trumped-up disciplinary procedure, which led to a final written warning for 12 months, after which I was selected for redundancy.
After making an FOI request in December under the Data Protection Act, I received a copy of my HR file. It contains many documents going back to the start of my employment but there is about a 3 year gap, during which I was having these problems, then the file abruptly re-starts with some inconsequential information just before I left, and there is no reference to the redundancy either.
A number of emails between my line manager and HR have been included from a previous absence over the same health issue but a few years before the period concerned, which are fairly innocuous. However, for another long-term absence with the same issue in the period concerned, there are no emails and no reference to this absence at all, my dealings with HR and OH, nor the disciplinary, the warning, the grievance or any other issues of that time.
I have an email in my personal email from that time from a member of HR who I'd emailed about an inaccurate meeting summary I wanted him to correct; he had declined to but said he'd keep a copy of my email with the meeting summary I was sent by letter; again none of this was in the HR file I was sent. The last performance review before my absence had had a page from a colleague's PR inserted where my page should've been. It was highly critical of my employer and it looked like I'd written it. It had been stamped by HR twice and had two dates on it, one from 2012 (when it was written) and one from 2014 when I was having these issues at work.
Having notified the FOI contact at the employer, she stated the PR page wasn't in the bundle she'd been given and couldn't comment further; she asked about what the other missing information was so she could follow up. I gave the examples above and said if there is too much information to send, to please provide a summary and I will choose from it. I also asked her to fix the PR issue. This was in May and I've had no reply, despite chasing it up in June. Can you please advise on how I can get this missing information and my concerns over this apparently doctered PR? thanks

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?

Customer: replied 1 year ago.
Hello Ben
I don't know, I can't see why not as it is the more recent information that is missing. My understanding was that they weren't allowed to just dispose of my information?

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

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 second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. The question will not close and I can continue with my advice as discussed. Thank you

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Customer: replied 1 year ago.
Hello Ben
Thank you for your detailed reply on the reference issue - the warning was valid for 12 months and expired while I was still with the employer, so, along, with the lack of reference to it in my file, would this mean it would be unlikely to be mentioned in a reference unless the new employer specifically asks about disciplinary issues, or would the fact it had lapsed while I was still employed there count for anything? The concern I have is that word may have got round my sector locally about my disciplinary and that is why I cannot get another job in this field, but I suppose proving that is impossible if it's been done through a discreet phone call than a formal reference...?In terms of the missing information in my file, I can prove at least some of it exists as I have some documents and emails from that time at home. I suppose my concerns boils down to why the employer is denying they have seen the erroneous document in my performance review when it's clearly there, have they corrected it as I asked, and if they have disposed of or put the other missing information somewhere else, how I can get that information. Surely if they reply and say it's gone missing or been disposed of, this is a breach of Data Protection? My feeling is they know the release of this information would put them in a bad light and are holding onto it for their own sake. thanks.

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.