bad reference

missile

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?

+1 I thought that was strange.

Op stated she was now unemployable. If she is unemployed she may qualify for legal aid?

marybelle01

JonathanStewart wrote: »

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.

I am siding with the OP - but the law doesn't always. This is why negligent misstatement is a stronger claim than defamation. As I KEEP saying!!! In defamation an opinion is an opinion - opinion does not have to be substantiated by evidence. Only FACT has to be substantiated by evidence. Nobody - absolutely nobody - in the world can say that another person is 100% reliable, trustworthy or whatever. So this is opinion. If I say someone is 100% reliable in my opinion then this is a meaningless statement - for all I know they stole the proceeds of the church fete and sold their sister into slavery. It's just an opinion nased on my limited knowledge of them - which actually makes it a bloody stupid question to ask in the first place!

In negligent misstatement, it does not matter whether something is fact or opinion if the statement leads someone to a conclusion which cannot be supported, and which causes them quantifiable loss.

Nicki

Oh my word! Despite setting out the law very clearly, marybelle continues with incorrect advice. Marybelle you can argue what you like on an Internet forum but a judge will never accept an argument in court that an allegation of dishonesty is a comment or as you describe it an opinion, and it will always have to be justified with evidence that the claimant has actually been dishonest not simply that the defendant had reason to think they could have been and certainly not where that reason is just that no one is 100% honest.

OP you have no way of knowing which of marybelle or I knows the law on this subject but you do know your solicitor has a law degree and hopefully some experience in this area so please take their advice only

Slowhand

missile wrote: »

+1 I thought that was strange.

Op stated she was now unemployable. If she is unemployed she may qualify for legal aid?

Is legal aid available for civil cases, which I think this may be?

marybelle01

Nicki wrote: »

Oh my word! Despite setting out the law very clearly, marybelle continues with incorrect advice. Marybelle you can argue what you like on an Internet forum but a judge will never accept an argument in court that an allegation of dishonesty is a comment or as you describe it an opinion, and it will always have to be justified with evidence that the claimant has actually been dishonest not simply that the defendant had reason to think they could have been and certainly not where that reason is just that no one is 100% honest.

OP you have no way of knowing which of marybelle or I knows the law on this subject but you do know your solicitor has a law degree and hopefully some experience in this area so please take their advice only

I totally agree that the OP should take their lawyers advice and neither mine nor yours. But the question was not "are they 100% honest" - even if someone could answer that question without it being opinion. It was whether they were " 100% loyal, trustworthy or honest" which is not the same thing. I think that you are very hung up on defamation claims - which are difficult and expensive, when simpler claims are available and more clear cut. My advice is not incorrect - it is different.

mum2one

I would be very surprised if legal aid is available for civil cases, - we're involved in one at the moment, and have tried the union, house ins and they won't take it as its civil, and a couple of solicitors i rang don't do civil on legal aid, although do try.

I sued my ex-employer, and it was a long hard slog,as I ad been defamination of character among other issues, and my payout was a fraction compared to the legal aid bill at the time. But since then legal aid for employment is getting thinner and thinner.

JonathanStewart

marybelle01 wrote: »

I totally agree that the OP should take their lawyers advice and neither mine nor yours. But the question was not "are they 100% honest" - even if someone could answer that question without it being opinion. It was whether they were " 100% loyal, trustworthy or honest" which is not the same thing. I think that you are very hung up on defamation claims - which are difficult and expensive, when simpler claims are available and more clear cut. My advice is not incorrect - it is different.

Nicki has stated she was a defamation lawyer so I would be quite happy to take on board her advice - unlike yours which includes the notion that you can stand up and say anything you like with no supporting evidence, deliberately sabotage someone, and expect to get away with it if challenged in the courts.

Nicki

Legal Aid is not, and never has been, available for libel claims. About 20 years ago, it was available for malicious falsehood claims, so claims for bad references brought before that point would have tended to be framed in MF rather than defamation to take advantage of that, even though the technicalities of that claim were rather harder to establish. This was when lawyers were not allowed to act on a conditional fee (ie no win no fee) basis. When the rules changed, most claims were brought under defamation law rather than MF for the reasons I've already set out.

A defamation claim is not more expensive if it is done on a no win no fee basis . There will be no payment of fees to your own lawyer at any point. There is a liability for the other side's costs if you lose (as there is with any form of litigation) but you take out an insurance policy against this at the outset of the claim, and if you are successful, the cost of the policy is also recoverable from the defendant. Nor is it, in my opinion, more difficult for a decent lawyer to pursue. And this is a clear cut case at least on the facts currently set out.

Am interested to see where OP has said that their former employer was asked: "Is OP 100% honest" and answered "No". That would be quite an unusual tick sheet for a company to send out, and rather naive. What OP actually said was that her reference contained the statement that she was not 100% honest, which I took to be a freestanding sentence drafted by the former employer. Either way makes no difference to the legal position, but thought I would mention this to clarify any muddying of the waters that might be going on.

Finally,

marybelle01 wrote: »

My advice is not incorrect - it is different.

I am sorry but you have posted several times that the employer can defend a libel claim brought on the back of this reference, by claiming that it was his opinion. That is incorrect (and definitely different to my advice too ). What was said in the reference may well be the employer's opinion, but unless he can establish a recognised defence to the libel claim - either justification, fair comment or qualified privilege in this case - then he will be liable to pay damages for expressing that opinion. As I have said before the defence of fair comment can only succeed if the underlying facts on which the comment is based are true - ie it is fair comment not just comment - and both fair comment and qualified privilege defences will fail if there is malice (which there is here because the employer gave a good reference for her first job in a different field after leaving and changed it to a bad reference when she went to work for a competitor).

JonathanStewart

The only thing that could get the employer out of this, and Nicki may be able to offer some advice here, is if they attempt to disassociate themselves from the comments of the individual who gave the secondary reference out, and state that those were the views of the individual and not the organisation. I.e. they cannot be held responsible for one persons individual actions.

Nicki

No, OP can still sue the employer for this. If the employers want to take some action against the reference provider that is a separate issue, but the OP is entitled to have her damages paid from company funds. If there is any risk of the company going bust, she could choose to sue both the company and the individual jointly though.