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can an employer give refence to another employer stating they resigned pending investigation?

asked in employment law

high1971 answers:

an employer or passed employer can give a reason for the employee's termination of contract so long as it is not classed as a bad reference
but most employers do not and most employers do not ask why they left the employment in a reference

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DragonsDen answers:

Possibly not. this is an interesting example of the law in respect of employment references. High1971 is incorrect and, despite a wide held belief, there is nothing to prevent an employer providing a bad reference. One reason that they don’t is the concern of vicarious liability which makes the company liable for what it written (unless it is specifically stated that the reference is provided on a personal basis, usually called a ‘character reference’). it is however absolutely essential that anything said must be based on facts, which can be backed up with professional evidence if challenged. there is no reason why the reference should not say anything critical, just that they must be able to substantiate it, and show that the employee would have been fully aware of the matter, so it would not be a surprise to them. I can’t find any specific case law for the example you give but there was a case of a major high street bank that mentioned in an employment reference that complaints had been made by other staff against the person in question, even though the bank had not properly investigated the matter, had not made the person aware of the complaints, and the complaints had not been substantiated. they were sued successfully by the ex-employee. the onus of the law is that an employment reference must be ‘true, accurate and fair’ and ‘it must not give an unfair or misleading impression overall’. therefore, if accusations of wrongdoings were made against the employee concerned and they resigned before any investigation AND no investigation was subsequently carried out, they could not be substantiated and should not be recorded in a reference. however, if the accusations WERE subsequently investigated and proved true then they could be recorded in an employment reference regardless of whether the employee had already resigned. often, it is part of the agreement made by an employee in situations like this that they will not receive a bad reference. this is, of course to the employers advantage as they get rid of the employee without needing to bother with proving the claims or not.

note > this applies to British law only and may be different if you are in the USA

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rasputin1309 answers:

As dragonsden says, High is wrong - the requirement is that the reference is honest and can be substantiated - not that it is a good reference!
There is caselaw stating this the name of which also escapes me - however a look in any tort law textbook will lead you to the appropriate case.

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