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bad reference

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  • Uncertain
    Uncertain Posts: 3,901 Forumite
    Nicki wrote: »


    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 :D). 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).

    I would be interested in Nicki's advice / clarification on three points here.

    What degree of dishonesty would be needed for the employer to successfully defend the "not 100% honest" statement. If the OP could be shown to have taken a biro or a paperclip home without permission would that do?

    Qualified privilege in references - could you expand?

    Also, I'm not totally sure why having given a good reference previously proves malice. I agree it might tend to suggest it but is that sufficient? Could it not be that the second (bad) reference was correct and they were just being extra nice in the first?

    Thanks
  • Nicki
    Nicki Posts: 8,166 Forumite
    Libel actions are heard by juries. So if you were on a jury would you think the defendant had justified his statement if he could prove that the claimant took a paper clip home? Personally, I doubt that would be enough, but on the other hand juries can be unpredictable. It would be a brave employer who took it all the way to court relying on such a weak claim.

    Have a look here for a short description of qualified privilege insofar as it applies to employment references

    http://www.hayes-solicitors.ie/news%5Cnews_11_2003_June_5.htm

    Again, on the malice front, if you were sitting on a jury and were told that the employer gave a good reference to the first employer who wasn't a competitor and a bad one to the competing employer, would you be most likely to think Oh they were just being nice first time round, or that the real reason for giving the bad reference was to stop the OP working for a competitor? Remember malice is only an issue if the employer has conceded that the allegation of dishonesty was not true, or at least that they admit they have no proof it is true. If they are saying it is true, malice doesn't come into play at all, but the employer must prove the truth of what was said.
  • Uncertain wrote: »
    I would be interested in Nicki's advice / clarification on three points here.

    What degree of dishonesty would be needed for the employer to successfully defend the "not 100% honest" statement. If the OP could be shown to have taken a biro or a paperclip home without permission would that do?

    Qualified privilege in references - could you expand?

    Also, I'm not totally sure why having given a good reference previously proves malice. I agree it might tend to suggest it but is that sufficient? Could it not be that the second (bad) reference was correct and they were just being extra nice in the first?

    Thanks

    I cant speak for Nicki but here goes,

    A reference should be honest accurate and fair and not mislead - if indeed if there were serious issues that would stop the person from taking the job, they could easily have been declared there.

    I would suggest that the provision of a decent reference in the first place certainly puts the claimant here on firmer footing, and especially if, as seems to be the case, the later allegations cannot be substantiated.

    Lastly, I hope you aren't suggesting that taking a paper clip or biro home would justify the dishonesty comment in a reference? If there are issues or allegations of dishonesty, let them be justified. Saying OP took a pen home would weaken, not strengthen that allegation, surely?
  • Uncertain
    Uncertain Posts: 3,901 Forumite
    Lastly, I hope you aren't suggesting that taking a paper clip or biro home would justify the dishonesty comment in a reference? If there are issues or allegations of dishonesty, let them be justified. Saying OP took a pen home would weaken, not strengthen that allegation, surely?

    I don't know. In some situations even the slightest dishonesty can lead to instant dismissal.

    As Nicky says juries can be totally unpredictable although it is hard to imagine a case such as this actually getting that far.

    To answer her question if I were on the jury.....

    It would depend on the context but I would tend to take 100% fairly literally (so I sympathise with Marybelle there). For me, any actually dishonesty would justify this claim but others may disagree.
  • DVardysShadow
    DVardysShadow Posts: 18,949 Forumite
    Nicki wrote: »
    Have a look here for a short description of qualified privilege insofar as it applies to employment references

    http://www.hayes-solicitors.ie/news%5Cnews_11_2003_June_5.htm
    Libel, slander, defamation are all things which the subject of the reference can hold the giver responsible for.

    Negligent misstatement is mentioned in the article as something that the recipient of the reference can hold the giver responsible for. Is this a claim which the subject of the reference could successfully make?
    Hi, we’ve had to remove your signature. If you’re not sure why please read the forum rules or email the forum team if you’re still unsure - MSE ForumTeam
  • Uncertain wrote: »
    I don't know. In some situations even the slightest dishonesty can lead to instant dismissal.

    As Nicky says juries can be totally unpredictable although it is hard to imagine a case such as this actually getting that far.

    To answer her question if I were on the jury.....

    It would depend on the context but I would tend to take 100% fairly literally (so I sympathise with Marybelle there). For me, any actually dishonesty would justify this claim but others may disagree.

    I find very often with these issues that there may be a grain of truth to the allegations - but only a grain - and its here where the difficulties lie. Do you take any indication of dishonesty no matter how minor in a wider context as being justification for a defamatory reference? I personally would say no, but of course a jury could think otherwise
  • dacouch
    dacouch Posts: 21,636 Forumite
    Part of the Furniture 10,000 Posts Name Dropper
    it says i only worked there for 6 years when it was 7 years and 9 months, its also says that i am not 100% loyal, trustworthy or honest yet I liaise and share work in an open fashion.
    It says I am not always sympathetic or empathic but i am able to form professional relationships.
    Another part says that I was about to undergo a disapilinary for timekeeping but I had no knowledge

    they also say i contribute but not always that I am very competent but lack interpersonal skills when the job was working with people.
    they said that i failed to complete agreed actions

    Have you ever considered a career as an MP, you'd be a shoe in for a job
  • getmore4less
    getmore4less Posts: 46,882 Forumite
    Part of the Furniture 10,000 Posts Name Dropper I've helped Parliament
    Can someone clarify if the position taken on an unconditional basis with the references taken after starting?

    It does seem that the dismissing employer has some questions to answer if they support the basis that the reference may not be genuine unless you are not happy with the employee so far...

    I wonder if the previous employer is going to play the nothing to do with us line rouge employee giving a personal reference.
  • Positive reference provided by a company that then change to a negative reference when applying for a competitor and there is no record of the negative reference.

    The former employee (OP) was untrustworthy and a poor time keeper but their employer never got round to starting a disciplinary against them?

    Call me a cynic but I don't trust the original employer.
  • Can someone clarify if the position taken on an unconditional basis with the references taken after starting?

    It does seem that the dismissing employer has some questions to answer if they support the basis that the reference may not be genuine unless you are not happy with the employee so far...

    I wonder if the previous employer is going to play the nothing to do with us line rouge employee giving a personal reference.

    That's my fear as well, Nicki thinks they're still potentially liable however
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