Ex-employer likely to give me negative and misleading reference - what are my options? 22 February at 10:39AM in Employment, jobseeking & training 38 replies 2.2K views

KatrinasWaves

I’m taking my ex-employer to tribunal for disability discrimination and constructive dismissal. 

I was harassed regularly and they refused to make adjustments. 

Result of this is that it seriously compacted my anxiety disorder leading to 7 months of absence. 

I’ve this week been headhunted by a company I previously interviewed with and was offered a role (which I declined for my ex-employers role). 

This new company has kept hold of my CV and they’ve emailed saying I’d be a good fit for a £30k per annum role and invited me to apply with an updated CV  - this is a substantial offer as I’ve only ever worked £17-19k salary ranges. 

Naturally, I’m desperate to get this role and am preparing my updated CV and doing heavy research into the company/role etc to ensure I stand the best chance. 

However, I’m concerned about my reference from my ex-employer. 

Prior to starting tribunal proceedings, I asked about references and they confirmed they would include dates and reasons for absence. 

Their reference if they do so will be misleading as my absences only occurred due to their behaviour. I would not have been absent otherwise. I literally ended up in A&E three times with chest pain due to their treatment of me. 

They are obviously not going to state that they contributed/were the cause of my absence and if my new employer asks, I’m going to be in a difficult position of explaining without making it sound like I could be a problematic employee - especially if they find out I’m going through litigation with them. 

My question is, how do I handle this? 

I can’t not list previous role or not use them as a reference due to having only one other employer prior so I’m going to have to include it and let them provide a reference. 

Where do I stand if a job offer is rescinded based on my ex-employers reference? Can I add this to my claim (we’ve already had the preliminary hearing too agree the list of issues) or can I make a new claim for compensation? 

Given I’m midway through litigation with them, where do I stand in terms of contacting either my ex-employer direct or their solicitor to ask about/negotiate a reference? Am I allowed to do this or would I be jeopardising the tribunal in some way? 

Am I best off doing nothing and just waiting and seeing what reference they give? I’m wondering if they’ll just give a basic reference given we’re in active litigation to avoid potential further issues? 

I’m a litigant in person with learning disabilities and no legal advice so this is difficult for me to navigate so any advice would be very much appreciated. 

Thank you. 

KatrinasWaves

Is there a way to edit my post? I didn’t realise the paragraph breaks would be so large! 

sevenhills

You have got to be upfront and explain everything as best as you can.
Your gaps when you did not attend work need to be explained, it won't be a positive for you.

Tucosalamanca

From my point of view, as an employer, my reference would go something like this (described as a basic reference)

'Thank you for contacting me, I can confirm that KatrinasWaves was employed as *enter role here*.
They were employed between *start date* and *leave date*

Kind regards

A.N Employer'

It's unbiased and leaves no room for complaint by yourself.

I suspect that your former employer will offer something similar, although their is no obligation for them to provide a reference at all (unless stated in your contract or in writing). When an employer has to give a reference: Providing a job reference - Acas

KatrinasWaves

Thank you Tuco. 

Yes, that’s exactly what I’m hoping for. 

The job I’m applying for is in a bank. My understanding (although I could be wrong) is that they cannot refuse to give a reference for this particular role as it’s legally required by the FCA (according to Irwin Mitchell anyway).  

So their choices are either a full reference which could cost me a job and potentially create more legal issues for them, or provide a basic reference. 

I’m hoping they’ll do the basic but who knows. Its a large organisation and don’t know how well different departments communicate (not well though in my experience) so it’s possible that the department that does the reference may be unaware of the legal situation and just give their standard reference including absences. 

Would it be worth contacting my ex-employer/their solicitor to ask about this?  

cmthephoenix

Prior to starting tribunal proceedings, I asked about references and they confirmed they would include dates and reasons for absence. 

Their reference if they do so will be misleading as my absences only occurred due to their behaviour. I would not have been absent otherwise. I literally ended up in A&E three times with chest pain due to their treatment of me. 

If they state your name and the periods of absence then it is in no way misleading. If they assign a reason for absence (which would be unusual in my experience) and give your stated reason for absence that again would be in no way misleading. If they stated their interpreted reason for your absence then they would be foolish.

It would be up to you to convince your prospective employer about your reason for absence.

TBagpuss

It may be worth you contacting the solicitor to ask them to confirm that they will give a factual reference, confirming dates of employment and role, only.

I would expect it to be in their interests to do this - from a tactical point of view, anything which looks like they are being vindictive or actively unhelpful would not assist their case.

That said, if their standard reference includes details of absence and you were, in fact, absent, then them including that information would not be misleading so I would be very surprised if it were something which could give rise to any new or additional claim. 

Your best bet may well be to be prepared to give an explanation if asked - e.g. that you had some short term medical issues which you have recovered from

KatrinasWaves

Thanks CM and TBagpuss 

I do believe that if they give a reference detailing my absence which causes me to lose a job offer would amount to discrimination. 

My anxiety is a disability as is my autism. My ex-employer knew of these conditions and failed to provide adjustments. I was also subjected to routine harassment and bullying for my disabilities. 

My ex-employer’s illegal discrimination toward me was the direct cause of my absence as it caused a severe relapse of my anxiety and a regression of my autism. 

Should they choose to list my absences - knowing fully they were related to both disability and discriminatory treatment - and I lose a job offer, according to case law UKEAT/0137/15/LA it could be seen as unfavourable treatment which amounts to further discrimination. 

Hence why I’m wondering where I stand. I don’t want to add further claims because the stress is already killing me but I do want to know my rights and how to best approach getting a basic reference. 

KatrinasWaves

Also, thank you TBagpuss yes I do intend to be upfront if asked. 

MattMattMattUK

KatrinasWaves said:

Their reference if they do so will be misleading as my absences only occurred due to their behaviour. I would not have been absent otherwise. I literally ended up in A&E three times with chest pain due to their treatment of me. 

The reference would not be misleading, it would be factual, as it is required to be. It would be down to you to explain that absence to the new/potential employer.

goater78

If you do go to a tribunal then the results are published after the tribunal. Therefore your further employer (and other other employer) could theoretically find this online and will get a full history of everything that happened at your previous employer. Whether this concerns you or not really probably depends on the outcome of it.