Bad/Negative Employment Reference from Previous Employer leading to termination of current employer

RocketRandall

I am currently dealing with an employment issue that is quite stressing and taxing and had impacted my livelihood and future employment.

Sept 2023 – I met with the owner of my company (Company , after working hours and outside of work.  He eventually told me, ‘I was too expensive, he couldn’t afford me and the company was losing money and he needed to put some of his own money to keep the company afloat.’

I was then told I was on Garden Leave for my notice period.  I understood this as redundancy due to cost.

During my notice period I looked for new opportunities and interviewed for new roles.

My notice period and employment ended on the 1st of a month.  I then received verbal and written offers for employment on the 5th of the month, with the condition I start on the 11th of the month.  I agreed the employment offer with the new firm (Company ) and cancelled all interviews I had previously scheduled.  I completed all the onboarding documents and forms, including Employment Reference Checks.

For the Employment Reference Checks, they asked for the last 5 years of employment; job title, start and end date of employment, salary and reason for leaving.

I had only worked for two companies for the last 5 years.  As Company B didn’t have an HR function or manager since Spring 2022, I left a manager at the company who had been serving the HR role (Not certified or qualified HR professional).  I listed my start and end dates of employment, job title, salary and reason for leaving as ‘Redundancy due to cost’.

I then went on to work for Company A for a month and suddenly one day was informed my employment with the company was being terminated effective immediately’.  I was told this was due to a ‘vary bad negative employment reference’.  I asked the company if they could let me know which employer left the reference in question and what the content of the reference was.  They let me know the referrer asked to remain ‘Anonymous’.  I asked quite a few times and each time I was told they couldn’t provide more details as the referrer asked to remain anonymous.

My employment was terminated that day and after I left work, I contacted one of then two previous employment references I left.  This employer confirmed they do not provide any more details outside of job title, start and end dates and reason for leaving for me was voluntary. 

I tried contacting the reference from Company B and received no response.  With the help of an employment solicitor, we were able to get a copy of the redacted reference that had additional ‘Performance Report’ Pro-forma questions that the majority of companies don’t answer due to best practise or policy.

The Employment Reference from Company B stated that the reason for leaving was ‘dismissed due to poor performance’, went on to rate me ‘Poor’ in the majority of categories, and stated I that he would not re-employ me and few other negative and untruthful statements.

This written reference was followed up with a ‘Confidential call’ between the two companies, Company A and B.

I was never given any feedback that I was a poor performer.  I never had an appraisal, performance review, disciplinary, or anything in my employee/HR file that would substantiate Company B’s reference and statements. 

1.  Should I make a Subject Access Request to Company B for my HR/Employee file that will show there were no performance concerns in my HR file?

2. Is there anything else I should be doing as my main goal in to get my most recent job back but there is a long road ahead to achieve this.

3. Failing point 2, how can I get Company B to stop giving me these type of references that will impact any future employment?

Thank you for your time and for any advice.

 

Undervalued

RocketRandall said:

I am currently dealing with an employment issue that is quite stressing and taxing and had impacted my livelihood and future employment.

Sept 2023 – I met with the owner of my company (Company , after working hours and outside of work.  He eventually told me, ‘I was too expensive, he couldn’t afford me and the company was losing money and he needed to put some of his own money to keep the company afloat.’

I was then told I was on Garden Leave for my notice period.  I understood this as redundancy due to cost.

During my notice period I looked for new opportunities and interviewed for new roles.

My notice period and employment ended on the 1st of a month.  I then received verbal and written offers for employment on the 5th of the month, with the condition I start on the 11th of the month.  I agreed the employment offer with the new firm (Company ) and cancelled all interviews I had previously scheduled.  I completed all the onboarding documents and forms, including Employment Reference Checks.

For the Employment Reference Checks, they asked for the last 5 years of employment; job title, start and end date of employment, salary and reason for leaving.

I had only worked for two companies for the last 5 years.  As Company B didn’t have an HR function or manager since Spring 2022, I left a manager at the company who had been serving the HR role (Not certified or qualified HR professional).  I listed my start and end dates of employment, job title, salary and reason for leaving as ‘Redundancy due to cost’.

I then went on to work for Company A for a month and suddenly one day was informed my employment with the company was being terminated effective immediately’.  I was told this was due to a ‘vary bad negative employment reference’.  I asked the company if they could let me know which employer left the reference in question and what the content of the reference was.  They let me know the referrer asked to remain ‘Anonymous’.  I asked quite a few times and each time I was told they couldn’t provide more details as the referrer asked to remain anonymous.

My employment was terminated that day and after I left work, I contacted one of then two previous employment references I left.  This employer confirmed they do not provide any more details outside of job title, start and end dates and reason for leaving for me was voluntary. 

I tried contacting the reference from Company B and received no response.  With the help of an employment solicitor, we were able to get a copy of the redacted reference that had additional ‘Performance Report’ Pro-forma questions that the majority of companies don’t answer due to best practise or policy.

The Employment Reference from Company B stated that the reason for leaving was ‘dismissed due to poor performance’, went on to rate me ‘Poor’ in the majority of categories, and stated I that he would not re-employ me and few other negative and untruthful statements.

This written reference was followed up with a ‘Confidential call’ between the two companies, Company A and B.

I was never given any feedback that I was a poor performer.  I never had an appraisal, performance review, disciplinary, or anything in my employee/HR file that would substantiate Company B’s reference and statements. 

1.  Should I make a Subject Access Request to Company B for my HR/Employee file that will show there were no performance concerns in my HR file?

2. Is there anything else I should be doing as my main goal in to get my most recent job back but there is a long road ahead to achieve this.

3. Failing point 2, how can I get Company B to stop giving me these type of references that will impact any future employment?

Thank you for your time and for any advice.

 

In giving a reference the employer owes a duty to both the former employee and the prospective employer to be truthful and not deliberately misleading. They can also express an opinion as long as it is honestly held. So, "would not re-employ" is an opinion, although fairly damming, but one they are quite entitled to hold.

1. You can do although it is almost impossible to know / prove what they might have held back.

2. It is entirely up to any former employer whether to take back somebody who has resigned. Some will, if they had a high opinion of the ex employee but many won't as a point of principle.

3. Stop offering them as a reference. A prospective employer should normally only approach a company for a reference with your permission. Otherwise legal actions for libel and seeking injunctions etc is the province of the wealthy. The financial risks are huge.

RocketRandall

Thank you for your comments advice Undervalued.

1. I believe an employee/HR file needs to stay intact and not tampered with. If there is no evidence of performance reviews, appraisals, disciplinary or anything performance based, it would all be held in the employee/HR file with an employee’s knowledge?

2. The new employer has stated they were completely satisfied with my employment and performance up until the employment reference, which was the only reason for termination. They remain open to the possibility of re-employment, but that window of opportunity closed as every day goes by.

3. If a new employer asks for employment references for the last 5 years of employment, can you just disregard the previous and most recent employment of 18 months and not state them as a previous employer?

Thank you!

Marcon

RocketRandall said:

Thank you for your comments advice Undervalued.

1. I believe an employee/HR file needs to stay intact and not tampered with. If there is no evidence of performance reviews, appraisals, disciplinary or anything performance based, it would all be held in the employee/HR file with an employee’s knowledge?

2. The new employer has stated they were completely satisfied with my employment and performance up until the employment reference, which was the only reason for termination. They remain open to the possibility of re-employment, but that window of opportunity closed as every day goes by.

3. If a new employer asks for employment references for the last 5 years of employment, can you just disregard the previous and most recent employment of 18 months and not state them as a previous employer?

Thank you!

1. Not necessarily all with the employee's knowledge.

3. You can do anything you like, but if you disregard the request and/or lie, it's highly inadvisable - these things come back to bite you.

You say in your post above that you took advice from an employment lawyer, and I suggest that's where you need to return now, given the seriousness of your accusations/situation.

TELLIT01

The main question is "Was the reference content accurate?"  If it was, there is nothing the OP can do about it.  If they believe the reference content was inaccurate and/or malicious they may want to speak to an employment lawyer

Undervalued

RocketRandall said:

Thank you for your comments advice Undervalued.

1. I believe an employee/HR file needs to stay intact and not tampered with. If there is no evidence of performance reviews, appraisals, disciplinary or anything performance based, it would all be held in the employee/HR file with an employee’s knowledge?

2. The new employer has stated they were completely satisfied with my employment and performance up until the employment reference, which was the only reason for termination. They remain open to the possibility of re-employment, but that window of opportunity closed as every day goes by.

3. If a new employer asks for employment references for the last 5 years of employment, can you just disregard the previous and most recent employment of 18 months and not state them as a previous employer?

Thank you!

1. Maybe but the relevant real world question is what can you actually do about it? Whilst the information commissioner has extensive powers, they have very limited recourses so rarely if ever get involved in individual disputes of this type beyond writing a letter.

2. It is entirely up to them if they choose to employ you or not. All you can do is offer alternative references etc. Even if you eventually successfully sued the employer that provided the "bad" reference, that would take months / years so it is unlikely the job would still be open and / or they were willing to give it to you.

3. Probably not.

Your best option might be to try a deter the recent employer form providing a "bad" reference to anybody else. A solicitor's letter might do the trick, after all they have little to gain by doing so. However, most likely they would simply refuse to provide a reference at all (or just ignore future requests) which is almost as damming and there is nothing whatever you can do about it.