Bad Reference

[sparklelard]

My Wife has just started a new job in a care home and her employer sent out requests for references.

One reference came back quickly, but the other, from a care home she used to work in 11 years ago, took some time, so the request was resent.

On Tuesday, she was called into the office as there was an irregularity with this late reference.

A gent, who will remain nameless, called her employer and basically assasinated her. My wife, of course, was extremely upset.

I then spoke to the person, who was supposed to have given her her proper reference and said that this man should not have contacted the employer as he was not asked to provide the reference.

My wifes' proper referee then contacted the employer to try and calm the muddied waters.

On Wednesday, my wife's employee then tried to contact this person again, and got the chairman of the trustees of the organsation from which the reference was coming from.

He went ballistic saying that he shouldn't have done this. He asked the employer to wait whilst he checked her previous work record and it was found to be exemplory. He had a long chat to my wife's employer, followed up with a reference in writing.

He has stated that this man was not authorised to speak on behalf of the carehome and his claims were unsubstantiated.

My wife want some legal redress on this. Not to the care home, but this person her bad mouthed her.

What can the panel suggest is her course of action.

[malvolio]

Speak to a solicitor, but it sounds like a prima facie case of slander to me.

[ratewhore]

It is illegal to give a bad reference apparently. But then - IANAL...

[Ardesco]

Under the Data Protection Act 1998, confidential references which you give are exempt from disclosure. This means that you can legitimately refuse to supply the ex-employee with a copy of the reference.

Obviously, if you are happy to let him see what you have written, then you should disclose it, especially if you are satisfied it is just and true (see further below). Unfortunately, however, the exemption does not cover references received by a prospective employer. Thus, the ex-employee is free to make a request for access to the reference recipients.

In considering whether to disclose the reference, a prospective employer should either obtain your consent or it must be reasonable in all the circumstances to dispense with your consent.

If you want to try and prevent disclosure, you should mark future references 'private and confidential' and include a statement that it should not be disclosed to the ex-employee without your prior written consent. It is not clear what action your ex-employee is threatening under the Data Protection Act 1998. It is assumed his threatened action is, first, in respect of obtaining a copy of the reference, in which case the provisions set out above apply. His next action would be a negligence claim through the civil courts.

You owe a duty of care to the ex-employee in providing a reference to a prospective employer. Your duty is to take reasonable care in the preparation of the reference and you will be liable to the employee in negligence if you fail to do so and the employee suffers loss or damage as a result.

Your obligation is to provide a true, accurate and fair reference. The reference must not give a misleading impression. However, as long as the reference is accurate and does not tend to mislead, there is no obligation on you to set out great detail or to be comprehensive.

Essentially, this means you must be able to substantiate the comments you have made in the reference with hard evidence and you must not give misleading information, whether by the selective provision of information or by the inclusion of information in a manner that would lead a reasonable recipient to draw a false or mistaken inference. For example, you should not allude to an employee's misconduct if you have never carried out an investigation into that misconduct and you do not therefore have reasonable grounds for believing in that misconduct.

http://newswww.bbc.net.uk/1/hi/business/3065319.stm

From what I understand you need to be able to show that you have suffered a financial loss to be able to sue for slander. As it has been sorted out you probably wont get much, however you may be able to go for stress caused and compensation for the extra effort involved in clearing your name, etc.

It does sound like you have a strong case as far as prooving it goes, but expect the other persons lawyer to try and do a ratchet job on you if it does go to court, although I suspect the other person will probably want to settle before it gets that far.

[sparklelard]

Thanks for the replies.

The financial loss could be if she loses her job because of this.

This reference was given verbally. The reference request was made by a standard form with tick boxes.

I have had an e-mail from the lady is giving her the proper reference confirming that this person had no right to represent the care home for this issue, and that disciplinary steps were going to be instigated for bringing the name of the care home into disrepute.

As I have said before, we have absolutely nothing against the care home and it's trustees. They have bent over backwards trying to clear up this mess.

It's against this poor excuse of a human being who enjoys making life miserable for people.

[tim123]

The financial loss could be if she loses her job because of this.

This is patently obvious. But the law does not allow you to claim for a mighthavebeen. If she does lose her job because of this, she has a financial claim. If she doesn't, then she doesn't.

tim

[dang65]

The bloke sounds like a complete nutter. He should be in a care home.

[MarillionFan]

I understand it was her first husband who was giving the reference.

[sparklelard]

He even started bring our kids into the conversation. My wife left the care home before our first one was born. I belive the phrase he used was "And what are her kids going to be like?"

My two girls play for a well known cornish brass band, go to a prestigious dancing school, are members of a local Am-dram club, and my eldest passed both entrance exams to the two top schools in Cornwall and has a place at the school that had the highest results.

We mentioned this two her and she replied with a huge grin, "I'll get Sparkle (our dog) to do a poo on his head". Nicely brought up!

Oh, and by the way, this guy does wear a toupee.

[sparklelard]

I understand it was her first husband who was giving the reference.

The first referee was for a nice gent who my wife provided respite care for a number of years for his disabled child.

The second referee was a Chairman for a branch of a national care home organisation. The chairman used to work for me in the late 80's and it's she who introduced my wife to me.