bad reference

lalalalalalala

Hi all,
The lawyer confirmed that the reference should never have been sent.
I have written a letter to HR explaining that the reference is factually incorrect and misleading- I have asked them to re-tract it saying that I will start legal proceedings for loss of income within 7 days if they do not respond.
The lawyer suggested that if they get legal advice on the letter that I have sent they will probably be advised to pay out as soon as possible.
The new employer has been really good even suggesting that the reference was malicious- when I requested a copy of the reference under DPA they have sent it to me free of charge and the letter states that it is with "great pleasure" that they provide it.
I think the old company will back down because I dont think they have a copy of the reference so they do not know what they are fighting, I am also aware that they have already been fined for a breach of the data protection act this year so I think they will be worried about my request for all my data because I know it is not up to date.
Hopefully I will know within a week, fingers crossed

lalalalalalala

in relation to the two references- when I left the company it was for a different type of job.
the bad reference has been sent to a competitor working in the same field- I suspect this has influenced the contents of the second reference!

JonathanStewart

lalalalalalala wrote: »

Hi all,
The lawyer confirmed that the reference should never have been sent.
I have written a letter to HR explaining that the reference is factually incorrect and misleading- I have asked them to re-tract it saying that I will start legal proceedings for loss of income within 7 days if they do not respond.
The lawyer suggested that if they get legal advice on the letter that I have sent they will probably be advised to pay out as soon as possible.
The new employer has been really good even suggesting that the reference was malicious- when I requested a copy of the reference under DPA they have sent it to me free of charge and the letter states that it is with "great pleasure" that they provide it.
I think the old company will back down because I dont think they have a copy of the reference so they do not know what they are fighting, I am also aware that they have already been fined for a breach of the data protection act this year so I think they will be worried about my request for all my data because I know it is not up to date.
Hopefully I will know within a week, fingers crossed

yes it probably is, but dont forget that the new employer did fire you as a result, so it seems they weren't entirely unhappy with what they received......

and I'm still not clear who actually sent this reference - did you say that it was a verbal reference, that has been written down by the new employer?

lalalalalalala

the orginal reference is written then the new employer followed up with a phone call

JonathanStewart

lalalalalalala wrote: »

the orginal reference is written then the new employer followed up with a phone call

So the reference received in writing by the new employer was a bad, damaging one?

And when they phoned up they confirmed the detail?

If this is the case does the written reference not have the sender of the letters name on it? In which case, if the sender was an employee of the old company, how can the old company say it wasn't sent by them, if that is in fact what they are claiming?

Uncertain

lalalalalalala wrote: »

Hi all,
The lawyer confirmed that the reference should never have been sent.
I have written a letter to HR explaining that the reference is factually incorrect and misleading- I have asked them to re-tract it saying that I will start legal proceedings for loss of income within 7 days if they do not respond.
The lawyer suggested that if they get legal advice on the letter that I have sent they will probably be advised to pay out as soon as possible.
The new employer has been really good even suggesting that the reference was malicious- when I requested a copy of the reference under DPA they have sent it to me free of charge and the letter states that it is with "great pleasure" that they provide it.
I think the old company will back down because I dont think they have a copy of the reference so they do not know what they are fighting, I am also aware that they have already been fined for a breach of the data protection act this year so I think they will be worried about my request for all my data because I know it is not up to date.
Hopefully I will know within a week, fingers crossed

Sorry but this is beginning to make very little sense.......

Was the lawyer willing to take this matter on or did he just give you some informal advice to send a "letter before action"?

If you send the letter and don't get a favourable response (or one at all) what are your plans then?

What quantifiable losses have you suffered that you feel you could realistically claim?

How long, exactly, had you been in the "dream job" before you were sacked apparently as a result of the bad reference?

Given that the firm that sacked you are seemingly being very helpful why did they feel the need to dismiss you on the strength of this letter given that they had the benefit of seeing your work over a period of days / weeks?

Nicki

marybelle01 wrote: »

Unfortunately no win no fee solictors are interested in the money and not in justice! Somebody pays their fees - they don't do it for free. So unless there is money to win, they won't be interested. One way or another there is a payment made and somebody makes it - usually the claimant.

Marybelle, your advice on this forum is often excellent, but that makes it all the more important when you don't actually know anything about the subject that you don't speculate, and present an opinion as fact.

A defamation lawyer would definitely be interested in doing this on a no win, no fee basis, and that is the basis on which most defamation actions are brought these days, even where the claimant is a high profile, high worth individual. The reason for this is that in addition to damages the defendant will be ordered to pay the claimant's lawyers costs at an enhanced rate (usually twice their hourly rate). So the claimant's lawyers get double what they would get if they had taken the case on on a standard pay as you go basis and the claimant gets to keep all of the damages.

Whilst the claimant can claim for actual loss in a defamation claim this doesn't cover the whole of the damages which will be awarded. They will get an amount which reflects the seriousness of the libel, and on top of that any quantifiable actual losses they have incurred.

On the face of what OP has posted, she has a perfectly good and valid claim against the former employer, and is likely both to get a decent sum in damages and also deter them from doing this again to her, so I would certainly recommend she pursues this.

For interest, read this about costs and CFAs in libel actions.

http://www.guardian.co.uk/media/2012/aug/30/daily-mail-neil-morrissey-deal

marybelle01

Nicki wrote: »

Marybelle, your advice on this forum is often excellent, but that makes it all the more important when you don't actually know anything about the subject that you don't speculate, and present an opinion as fact.

A defamation lawyer would definitely be interested in doing this on a no win, no fee basis, and that is the basis on which most defamation actions are brought these days, even where the claimant is a high profile, high worth individual. The reason for this is that in addition to damages the defendant will be ordered to pay the claimant's lawyers costs at an enhanced rate (usually twice their hourly rate). So the claimant's lawyers get double what they would get if they had taken the case on on a standard pay as you go basis and the claimant gets to keep all of the damages.

Whilst the claimant can claim for actual loss in a defamation claim this doesn't cover the whole of the damages which will be awarded. They will get an amount which reflects the seriousness of the libel, and on top of that any quantifiable actual losses they have incurred.

On the face of what OP has posted, she has a perfectly good and valid claim against the former employer, and is likely both to get a decent sum in damages and also deter them from doing this again to her, so I would certainly recommend she pursues this.

For interest, read this about costs and CFAs in libel actions.

http://www.guardian.co.uk/media/2012/aug/30/daily-mail-neil-morrissey-deal

At no point did I say that a lawyer might not be interested. In fact I pointed out negligent mistatement as a cheaper and better option than defamation. What I said is that no win no fee lawyers are interested in what they are paid. That is an absolute truth. They are not charitable bodies. They care about what money they make, and if they don't make money they don't care about justice.

Whether the OP has a claim isn't my ability to judge. But I know enough to say that a legitimate defense is opinion. If someone asked me if my brother is 100% honest, I would have to say I don't know. That's my opinion. I have no idea whether he is or isn't! I have no idea what he does when I am not around.

Regardless, if you read what I actually said, what I said is that lawyers are interested in the money they make, not in justice. You haven't said anything that disagrees with me. If a lawyer sees money in it for them, they will take the case. If they don't, they won't.

JonathanStewart

marybelle01 wrote: »

At no point did I say that a lawyer might not be interested. In fact I pointed out negligent mistatement as a cheaper and better option than defamation. What I said is that no win no fee lawyers are interested in what they are paid. That is an absolute truth. They are not charitable bodies. They care about what money they make, and if they don't make money they don't care about justice.

Whether the OP has a claim isn't my ability to judge. But I know enough to say that a legitimate defense is opinion. If someone asked me if my brother is 100% honest, I would have to say I don't know. That's my opinion. I have no idea whether he is or isn't! I have no idea what he does when I am not around.

Regardless, if you read what I actually said, what I said is that lawyers are interested in the money they make, not in justice. You haven't said anything that disagrees with me. If a lawyer sees money in it for them, they will take the case. If they don't, they won't.

Yet this is exactly not what was said of the OP in the reference.

Reading back OP states: it also says that i am not 100% loyal, trustworthy or honest yet I liaise and share work in an open fashion.i am not 100% loyal, trustworthy or honest

Even an opinion surely has to be backed by evidence in a reference - the OP is adamant that there is nothing to back these claims up - I've seen nothing so far to contradict that assertion. I would say its therefore actionable - quite apart from the fact that it was issued in a manner seemingly calculated to damage.

Nicki

marybelle01 wrote: »

But I know enough to say that a legitimate defense is opinion. If someone asked me if my brother is 100% honest, I would have to say I don't know. That's my opinion. I have no idea whether he is or isn't! I have no idea what he does when I am not around.

Regardless, if you read what I actually said, what I said is that lawyers are interested in the money they make, not in justice. You haven't said anything that disagrees with me. If a lawyer sees money in it for them, they will take the case. If they don't, they won't.

No. I am afraid you are incorrect.

If you state something as a fact - ie that the OP is dishonest, then the onus is on you to prove that it is true, and although the burden of proof in civil actions is "on the balance of probabilities" not "beyond reasonable doubt", where you are trying to justify an allegation which contains a suggestion of illegality, the judge will direct the jury that the balance must be tipped heavily in the defendant's behaviour - not 51% there.

There IS a defence of fair comment but there are various conditions which must be met to rely on it, which are all defeatable here:

1. it must be a comment not a fact (ie a subjective judgment not an absolute one) - eg that something is not funny/attractive, etc. Dishonesty is black or white so is a fact
2. the facts relied on to support the comment must all be proved to be true
3. there must be no malice (malice in the legal sense includes negligence)

An allegation of dishonesty is bread and butter work for a defamation lawyer (I was one for a good many years!). All a claimant has to show is that what was said was defamatory, and this clearly is. The burden of proof in all other respects is on the defendant which makes the scales firmly loaded against them, and makes defamation law very different from things like personal injury where all the burden of proof is on the claimant. Negligent misstatement isn't better or cheaper than defamation in these circumstances, it is a much less common cause of action, and the burdens of proof are back on the claimant.

So, the bottom line is that the OP should take proper legal advice on this, and not be dissuaded by comments on the internet about her prospects of success.

By the way, I and many of my colleagues often acted pro bono in particularly egregious cases, so it is also wrong to say that we have no interest in justice. Because libel is a well paid area of the law, we were able to do that perhaps more often than lawyers acting in less lucrative areas who relied on being paid for every single case to cover their overheads. I am not for a second saying that all lawyers are philanthropists or generous souls, but it is unfair to kick the whole profession on the basis of prejudice when many solicitors are motivated by a desire to see justice done and will try and help those in difficult circumstances where they can.