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references??
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ive been told an employer cannot give a negative reference-is this true- what if you have really got a bad employment record? will references list formal warnings?- or what if your current manager is a nasty piece of work and gives a negative reference?- do you have a right to see references?
in fact if you fail to get a job- how do you know/prove it was due to a negative reference- as both companies involved could easily collude and say no references were given and "that other candidates were more suitably qualified"
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(Multi-part post):
The questions you've asked could occupy a conference of lawyers for weeks and there would still be disagreements!
The laws of libel don't stop me from writing what I like about whom I like and sending it to anyone I like as long as either:
(i) the statements are true or
(ii) the statements may be regarded as 'fair comment'.
So, if somebody asks me to provide a personal reference for them (as distinct from an employer's reference - see below), I'm free to write "Mr Bloggs has been convicted of many counts of theft" (as long as I know that this is true) or even "Mr Bloggs is extremely lazy" (as long as I can justify this as fair comment).
As far as the laws of libel are concerned, an employer is just as free to write what he likes about any employee. There is an additional law, however, which might constrain his actions. This is 'breach of confidence'. (Actions under this law can be very complex and time-consuming. They're best avoided unless, of course you happen to be the England football manager or the editor of the News of the World!). Since any disciplinary hearing, or action, is normally a confidential matter between the employer and his employee, there may be a legal case for claiming that the employer is acting in breach of confidence if he reveals details of these matters to another person.
The questions you've asked could occupy a conference of lawyers for weeks and there would still be disagreements!
The laws of libel don't stop me from writing what I like about whom I like and sending it to anyone I like as long as either:
(i) the statements are true or
(ii) the statements may be regarded as 'fair comment'.
So, if somebody asks me to provide a personal reference for them (as distinct from an employer's reference - see below), I'm free to write "Mr Bloggs has been convicted of many counts of theft" (as long as I know that this is true) or even "Mr Bloggs is extremely lazy" (as long as I can justify this as fair comment).
As far as the laws of libel are concerned, an employer is just as free to write what he likes about any employee. There is an additional law, however, which might constrain his actions. This is 'breach of confidence'. (Actions under this law can be very complex and time-consuming. They're best avoided unless, of course you happen to be the England football manager or the editor of the News of the World!). Since any disciplinary hearing, or action, is normally a confidential matter between the employer and his employee, there may be a legal case for claiming that the employer is acting in breach of confidence if he reveals details of these matters to another person.
To complicate matters further, the terms of the employer's registration under the Data Protection Act also have to be considered. If the Data Protection Registrar has accepted a registration which specifically allows the employer to divulge certain information to a prospective future employer of a current employee, then it might be permissible to pass such information on. In most cases, however, such a form of registration will not have been granted. This means that the employer is bound to keep all written or electronically-stored information about his employees confidential. (This, obviously, will include records of disciplinary procedures).
So, in general, employers are wise if they act with a certain degree of caution when providing refernces. (This doesn't mean that they can't provide negative references - only that they should take great care to remain within the law when they do so).
Have you a right to see the references? Probably not. If you get the job you're after, there might be a case for quoting the Data Protection Act and demanding to see something which your new employer has probably kept on file about you. The likely response, however, is that the reference is exempt from the provisions of the Data Protection Act because your former employer provided the reference 'in confidence' and it would thus be a breach of confidence to show it to you! (i.e. the same law which can sometimes work in your favour can also work against you).
So, in general, employers are wise if they act with a certain degree of caution when providing refernces. (This doesn't mean that they can't provide negative references - only that they should take great care to remain within the law when they do so).
Have you a right to see the references? Probably not. If you get the job you're after, there might be a case for quoting the Data Protection Act and demanding to see something which your new employer has probably kept on file about you. The likely response, however, is that the reference is exempt from the provisions of the Data Protection Act because your former employer provided the reference 'in confidence' and it would thus be a breach of confidence to show it to you! (i.e. the same law which can sometimes work in your favour can also work against you).
If you fail to get the job, then the employer who did not give you employment will probably destroy the reference. (So, even without the complications of 'breach of confidence', trying to invoke the terms of the Data Protection Act won't help). Your existing (or past) employer would probably also be wisest to destroy any copy of the reference (because you can't successfully claim a right to see information which no longer exists) but even if he doesn't, he can probably claim, once again, that the reference was given 'in confidence' and that it would be a breach of that confidence to show it to you.
How do you prove that the reason you failed to get a particular job was because of a negative reference? The only realistic answer is "You can't".
Negative references may seem to be a bad thing if you happen to be the person 'on the receiving end' but many people believe that the existing (rather vague) laws constrain employers too much. Let's suppose, for example, that you find out that your children are being taught by a teacher who has little knowledge of his subject and a total inability to keep control in the classroom. When you make some enquiries to the parent-governor who sat in on the selection meeting which gave him the job, you're told "Well, I've seen his references from his last school and they looked fine to me". Wouldn't you have preferred it if that teacher's previous Headteacher had been able to write "Mr Smith has little interest in teaching, a very poor knowledge of his subject and no idea of how to control or relate to children"? Sometimes negative references can be a good thing!
Chris
How do you prove that the reason you failed to get a particular job was because of a negative reference? The only realistic answer is "You can't".
Negative references may seem to be a bad thing if you happen to be the person 'on the receiving end' but many people believe that the existing (rather vague) laws constrain employers too much. Let's suppose, for example, that you find out that your children are being taught by a teacher who has little knowledge of his subject and a total inability to keep control in the classroom. When you make some enquiries to the parent-governor who sat in on the selection meeting which gave him the job, you're told "Well, I've seen his references from his last school and they looked fine to me". Wouldn't you have preferred it if that teacher's previous Headteacher had been able to write "Mr Smith has little interest in teaching, a very poor knowledge of his subject and no idea of how to control or relate to children"? Sometimes negative references can be a good thing!
Chris
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