Previous Employer lying

EltonA32

Hi everybody, I'm unsure if I am in the right place to post this, but I'm at my wits end and ACAS cannot help me, so I would like any FACTUAL advice you may have to offer me. I apologise for the long post....

Basically, in March I lost my job due to a reference that was provided by a previous employer. The reference is inaccurate and makes me look like a bad employee, when in fact I am quite the opposite whomever I work for. I approached the individual concerned to provide me with a reference, and he agreed quite happily; I wouldn't have asked him if I thought he would slander me...
I resigned from that employer in July 2009, due to ongoing sickness (I sent a very polite letter of resignation whilst I was off sick, giving my valid reasons for resigning) I did not work my 1 weeks notice as the employer would have been closed for 2 weeks for Summer shutdown. Unfortunately, this particular company tend to make their own rules; they do not have a HR department and they regularly break employment law and have terrible working conditions - I'll come back to this, as it does bear some relevance.

The reference states that I'm "not a team player". The problem with this is the fact that the job I did was a solitary job, working in an enclosed small room with hardly any contact with colleagues. The work required me to concentrate with my head down as it was quite skilled and very easy to make a mistake. The only thing I didn't do was overtime, because the company had stopped paying it and expected us to stay on and do extra hours ON THE SAME HOURLY RATE, which frankly not many people would do anyway, and besides, I wanted to be at home with my partner and my then 9 month old daughter, which is no crime. It also states that my sickness absence was "unauthorised" which is total tripe as I called EVERY SINGLE TIME I WAS OFF SICK and my phone bill can back this up (by the way, I suffer with depression and have done for years and the job did not help).
Prior to being in this position, I worked with the industrial sales department, which I was unceremoniously removed from, without notice AND with a £4,000 paydrop, overnight. Which in itself is wrong and I was expected to be happy about this? Reasons were due to "restructuring" which I know is also rubbish as I know the real reason and it has nothing to do with me and eveything to do with another employee threatening to leave and taking all said person's experience with them so I was "shoved" out of the way. I was also paid 2 pence below the minimum wage at the time for around 3 months when I first started working for the company (£5.50 instead of £5.52).

I have been corresponding with my solicitor for the past few weeks as she has been writing to the company concerned; she wrote three times before they responded. Unfortunately, they have responded by phone and they continue to lie to cover themselves and even insinuating that, and I quote: "...not to have received your resignation until weeks after the alleged termination of your employment". Hmm. Am I missing something? I resigned, my employment with them WAS NOT terminated and they even claimed to understand why I was off sick prior to leaving. My resignation letter was dated 17th July 2009 and they must have had it as not long after that I received my P45 and final payslip. So, I am feeling very screwed over by a company that break the rules of employment and will all stick together and cover themselves, even by lieing. The stupid thing is, the MD has been in touch with my solicitor and he didn't even know me as a person, let alone know who I was in the company!

We've also lost our position at the local childminder as we cannot afford to pay the fees anymore and we will struggle to get a place again to to our rural location and the fact neither of us drive, so I am looking after my daughter full time, making finding employment more difficult.

I don't know what to do. All I know is how infuriatingly angry I am at the fact that this company have taken away my livelihood, not to mention the decent income I had to provide for my family. Now my partner is working all the hours under the sun to keep money coming in and I'm sat here writing this, on JSA with very little chance of further employment as A) I can't use either company for a reference, thus leaving an employment gap I have to explain to potential employers which doesn't look good and I live in a heavily Welsh speaking area so if you cannot speak Welsh (I am English) you are automatically at a massive disadvantage when appying for jobs as most employers, in my opinion unfairly, stipulate that fluent Welsh is needed for the post. Unfortunately, in my experience of living here for over 2 years now, the language system is VERY hypocritical. Consequently, hardly any employers in this area are Equal Opportunity employers.
So I don't know what to do. I feel utterly powerless as I don't feel I can prove that the company is lieing to cover themselves. I can't take them to court as I don't get the legal aid and if I went up against them without a solicitor and I lose, I'd be liable for their costs.

I'm seriously starting to rue the day I ever moved here and my depression has been exacerbated by all this to the point of where I am breaking down, in front of my daughter, regularly. Please, any help or advice would be greatly appreciated.

Thank you in advance.

EDIT: Oh I also never had any contract of employment or employee handbook, even verbally, for the whole year I worked for them and I know I should have that within 12 weeks.

DVardysShadow

Firstly, focus. Second, go back to your post and edit out the details concerning the type of work you did [para 3] and the locality and its issues. Anyone who knows your case would otherwise be able to identify you quite clearly.

Thirdly, focus again and tell us whether you were actually employed to March and how the reference came into play.

crackerberry

If you have a solicitor ask if you have any grounds to take your ex employer to a tribunal for "post-employment victimisation". Depending on the full history at that employer you may be covered under this if, for example, you complained/raised any grievance(s) whilst you were there and subsequently received an untruthful/unfair reference from them after you left.

It sounds as though the reference issue is currently being tackled. It doesn't help whats already happened in terms of previous job offers withdrawn but for future situations you could forewarn future employers of the reference situation with this former "malicious" employer and the possible impact on any reference from them. If you have correspondence on the subject to show them all the better.

The other possible option is "malicious falsehood" proceedings in the county court. Primarily for financial reasons you won't want to go down this route but mention it to your solicitor - could be that just the threat of proceedings via a strongly worded solicitors letter may make your ex employer tow the line.

EltonA32

DVardysShadow wrote: »

Firstly, focus. Second, go back to your post and edit out the details concerning the type of work you did [para 3] and the locality and its issues. Anyone who knows your case would otherwise be able to identify you quite clearly.

Thirdly, focus again and tell us whether you were actually employed to March and how the reference came into play.

OK (I think?)...

My last day of employment with the company that received the reference was 11th March 2010. As I was still within my first 3 months with my last employer, they used the clause in my contract 'continued employment is subject to satisfactory references' without giving me any opportunity to explain about said reference or allowing me the chance to get an impartial witness (as I had no idea I was about to be sacked - a total shock). My work with this company was to a good standard and my behaviour was as it should be; I was a good employee. However, the company I worked for are known to be pretty ruthless. I am concerned however that the reference provided has a date of 1st March 2010. On that point it states on the reference: 'Reasons for leaving' "went off sick and did not return". That clearly isn't a reason. My sickness was authorised and I gave written notice with valid reasons for leaving.

This is all such a mess

EltonA32

crackerberry wrote: »

If you have a solicitor ask if you have any grounds to take your ex employer to a tribunal for "post-employment victimisation". Depending on the full history at that employer you may be covered under this if, for example, you complained/raised any grievance(s) whilst you were there and subsequently received an untruthful/unfair reference from them after you left.

It sounds as though the reference issue is currently being tackled. It doesn't help whats already happened in terms of previous job offers withdrawn but for future situations you could forewarn future employers of the reference situation with this former "malicious" employer and the possible impact on any reference from them. If you have correspondence on the subject to show them all the better.

The other possible option is "malicious falsehood" proceedings in the county court. Primarily for financial reasons you won't want to go down this route but mention it to your solicitor - could be that just the threat of proceedings via a strongly worded solicitors letter may make your ex employer tow the line.

Thanks Crackerberry I never thought of that and I will certainly discuss this with her. I did complain that I was moved with no warning or notice and a pay drop, unfortunately all verbal as the company probably don't have such a thing as a grievance procedure! They were going to offer me £5.80 an hour and I said no and because of what they did the bare minimum should be £6.21, to which they begrudgingly agreed to.

I am concerned about informing potential employers of the situation, as this will make me look bad and won't make me a favourable employee as they'll think I'm a trouble causer and not a 'yes man' like most employers want! I've always been a good employee yet I hate it when an employer thinks they can screw you over, only then will I raise issues to management, in the correct forum; there's only been one ex-manager of mine that's said there are not enough people like me who have the guts to stand up to management; I've never been afraid of management and never will be so I gained his respect for that. Anyway sorry waffling!

SueC_2

A minor note, but something to bear in mind - typically any absence that isn't authorised in advance is counted as 'unauthorised'. Phoning in on the day you are actually sick, in every company I've ever worked for, counts as unauthorised absence.

Authorised absense is stuff like holidays where you ask your employer if you can book certain dates and they then have the opportunity to say yes or no and plan around your pre-scheduled absence.

In the case of sickness you simply tell your employer you are not coming in to work, and it's not down to them to 'authorise' it, they just have to live with the consequences of it. Hence the term 'unauthorised'.

EltonA32

SueC wrote: »

A minor note, but something to bear in mind - typically any absence that isn't authorised in advance is counted as 'unauthorised'. Phoning in on the day you are actually sick, in every company I've ever worked for, counts as unauthorised absence.

Authorised absense is stuff like holidays where you ask your employer if you can book certain dates and they then have the opportunity to say yes or no and plan around your pre-scheduled absence.

In the case of sickness you simply tell your employer you are not coming in to work, and it's not down to them to 'authorise' it, they just have to live with the consequences of it. Hence the term 'unauthorised'.

Hi Sue and thanks

Yes I've always thought that. How can my sickness be authorised; it's like I have to ask them to be off sick which is clearly ridiculous?! I called as soon as the office was open (8am). Every company I've work for that actually HAS procedures for sickness, stipulated that if you are going to be off sick, you need to phone your line manager as soon as possible on the morning (before your shift) or before 10am OR call them the afternoon before to say you may not be in again the following day.

I personally think I have a strong case against them as the information on the reference is false, misleading and I could sue for mis-representation/defamation and the following points I believe the employer has breached:

• the information contained in the reference was misleading;
• because of the misleading information, the reference was likely to have a material effect upon the mind of a reasonable recipient of the reference to the detriment of the employee;
• the employee suffered loss as a result (for example the withdrawal of a job offer); and
• the employer was negligent in providing such a reference.

But how the heck do I prove this? I've considered a tribunal but I'm unemployed with no funds at my disposal. BUt I am NOT giving up.

MrsManda

Do you have a copy of the reference?

EltonA32

MrsManda wrote: »

Do you have a copy of the reference?

Hi MrsManda thank you for the response.

Yes I have all the documents, including a 'neutral' reference provided from another employer.

Thank you everybody for your help so far.

crackerberry

Forget suing for defamation. Unfortunately its pretty much a non starter (something like £150k deposit has to be lodged with the court to pursue it) financially unless you win the lottery...hence why I mentioned the other two possible options to explore.

I think your best option is to face the problem head on future interviews wise. If you get to an offer stage with another employer tell them at that point about your problem with the previous employer and the unfair reference which you are currently tackling legally now hence twice the likelihood the employer will be vindictive again, but you have documented proof of this and what actually occured.

sulkisu

Does your solicitor agree that the reference was defamatory? Has she actually said this to you? If so, I would be interested to know which statements she believes are defamatory. I appreciate that you might not like what was written in the reference, but the rules on defamation are much stricter than that. You will need to show that your employer made false statments, which they knew to be false or were reckless to the fact and that you suffered damages as a result. 'Misleading' doesn't come into it I'm afraid, it needs to be a lie. If your new employer says that they dismissed you purely because of the contents of the reference, then you have satisfied the damages element. Did they actually say that?

For example where they stated that in their opinion you were not a team player, they haven't actually lied. It's an opinion, not a statement of fact and relatively easy to justify (I'm not saying that I agree with them). If it were my case I would argue that they based this opinion on the fact that you would not do overtime, (assuming that some of your colleagues were). Not mucking in to help out.

Likewise, in saying that you were on sick leave and then did not return to work, this is pretty much what happened, although of course there were reasons why you decided to resign. Unless they actually lied about why you left the job, you will find it difficult if not impossible to prove that you have been defamed.

I am not sure sure why you are upset about the fact that the MD of the company has been in touch with your solicitor. As head of a company which might be facing legal action, I wouldn't expect anything less. He may not have known who you were while you worked there, but clearly he has since been brought up to speed on your case.

I was confused about the timeline of events, e.g. when you resigned, when letters were sent, etc, so apologies if I have missed something important. I am not saying that you don't have a case - there may well be other clearly defamatory statements that were made which caused you to lose your job. I can only go on what you have written here. It might be worth asking your solicitor if she believes the reference is defamatory and why. She might feel that you have been treated badly and wants to help you, but it's not the same thing. Good luck anyway.

Edit: I just spotted a couple of other things. An absence may be deemed unauthorised if you failed to follow company procedure, whatever that was. For example did they receive your medical certificates, were they sent recorded delivery (so that you can prove they arrived) and did they cover the whole absence - with no gaps? Your phone bill may well show when a call was made but not what was said, who you spoke to, or even if you spoke to a person at all - as opposed to a machine.
With regards the issues relating to the change of post etc, much will depend on how they responded when these matters were raised with them? When you complained about the reduced pay, what did they say and how did you respond? Courts will expect you to show that your employer was given the chance to address these complaints.