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AIBU?

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Original poster

To be really angry? I've even cried

293 replies

HelenOn · 03/04/2019 10:13

My new job, of which I'm suppose to start next week, have called to have a chat.

They wanted to ask why one of my references came back as 'Had a lot of time off sick' (not sure if old work gave dates).

I was off a lot for the majority of my time in that role (about a year) due to crippling Hyperemesis Gravidarum (HG). My spelling may be slightly off there.

Anyway, since it is completely pregnancy related, I didn't think they could mention it in a reference.

But it's been mentioned and new employer now sounds very sceptical. I tried to explain what it is and I got a very abrupt 'We know what HG is'.

I just don't know what to do Sad I really need/want this job and feel like crying. New job have said they're speaking to HR for a chat about it.

AIBU to be really angry at old work?

OP posts:
floribunda18 · 03/04/2019 12:38

I'd say they've potentially disclosed sensitive personal data when they were not legally obliged to and breached GDPR.

www.stronachs.com/news-insights/insights/53-employment/351-how-to-deal-with-employer-references-post-gdpr

Report them to the ICO straight away, the negligent fuckwits.

Special categories of Information

Prospective employers may want to know about an employee’s sickness or reasons for periods of absence. Under the GDPR health data falls under a special category of data and requires different grounds for processing but this does not apply where there has been “explicit, unambiguous consent” from the data subject. This is an even higher bar than standard consent. It is recommended however that any reference requests relating to an employee’s health are treated with extreme caution and that very specific consent is in place before any such disclosure is made

ContinuityError · 03/04/2019 12:39

It's discrimination under the Equality Act if an employer treats you (whether you’re a current employee or a job applicant) unfavourably because of an illness suffered as a result of your pregnancy.

Also, negative comments or warnings about absences because of pregnancy or pregnancy-related illness are likely to be discriminatory.

This ACAS document should help:

m.acas.org.uk/media/pdf/0/t/Pregnancy___Maternity_Discrimination.pdf

angelunderneath · 03/04/2019 12:41

This is disgraceful

Peghi · 03/04/2019 12:42

Have you called acas?

ChicCroissant · 03/04/2019 12:42

OP, what did you say about that job in the interview? Because it does come across that you tried to hide the absence, which will be the issue really. It would have been better to address it at an earlier stage, especially if you can show that in your jobs prior to that one, your sickness level was not high.

HavelockVetinari · 03/04/2019 12:46

They can't withdraw their offer based on this, and your old employer has breached the GDPR - call them immediately and ask whether they've reported the breach to the ICO and if not, why not, and what they intend to do about it.

floribunda18 · 03/04/2019 12:47

They wouldn't be allowed to ask about pregnancy related illness in an interview. You might choose to freely disclose it but there is no obligation.

Mia1415 · 03/04/2019 12:47

HR Manager here.

Your new company can't legally withdraw the offer due to a pregnancy related reason (which this is!).

If I were you, I'd ring them and ask to speak to HR. Explain that you have had this phone call and are worried about it and see what they say.

ChicCroissant · 03/04/2019 12:55

Who did you put down as the reference at the previous post, OP? Was it HR or someone in the department you worked in (it should have been HR who would have kept the pregnancy-related absence records seperately from any sickness records).

themailfail · 03/04/2019 12:58

HR are there to protect the business, not you. Get an employment lawyer.

SurgeHopper · 03/04/2019 12:59

Do you personally know the person who gave you the reference? Did you name them in the job application I e. Mary Smith, Manager.

swingofthings · 03/04/2019 13:02

They can't withdraw their offer based on this
No they can't, but if OP stated she gained x level of experience during her previous job during the interview, yet was off most of the time, they could say she was dishonest.

I don't think we have enough information to categorigally say that it would be illegal for them not to offer the job.

It's also not clear whether the all amount of illness was indeed related to the pregnancy. If OP had say two instances of sickness not related to pregnancylasting say 2 or 3 weeks, they could argue that this is a lot from their perspective and didn't refer to any of the pregnancy related time off.

fluffyhamster · 03/04/2019 13:03

While the new company clearly can't withdraw the offer due to a pregnancy related reason (and would be stupid to say they had) I bet there is still a way they could wriggle out of the employment offer somehow using some spurious other excuse e.g. "unexpected budget cuts" or similar. Companies assume your average worker won't have the time, energy or resources to bother fighting this sort of thing through the courts and will just move on. It's wrong, but it happens.

Have you signed a final contract OP? Was there any kind of "cooling off" clause for both you and the employer?

Bluededoobeedoo · 03/04/2019 13:03

Really would advise you call ACAS for this as it is quite specific

Ninkaninus · 03/04/2019 13:09

I’d let my previous employer know that they have acted illegally, in the strongest possible terms, and if you lose this job I would take legal advice on pursuing a lawsuit against them for that reference. Utterly despicable behaviour.

If you lose this job on the back of this I would thank your lucky stars, tbh. I know that’s easier said than done when you need a job, but you don’t want to be working for an outfit like that.

AmIRightOrAMeringue · 03/04/2019 13:13

It is discrimination to treat an employee differently due to a pregnancy or maternity related issue. Therefore pregnancy related absence cannot be counted and used against you in reviews etc

I am keeping my fingers crossed for you as I agree it would be difficult to actually take any action if they didn't offer you the job because of it you could but it wouldn't help you in the short term.

I'd ask them to put everything in writing and Google the relevant laws and point them out to them. They'd be daft to put in writing they were withdrawing your job offer because you were off with a pregnancy related illness. Hopefully their HR will point this out to them

I'd also put in a complaint to where you used to work so it doesn't happen again and ask them to remove this from your records or you will be getting an employment lawyer involved since they are affecting your future chances of employment for a pregnancy related reason

LittlePaintBox · 03/04/2019 13:18

The only thing I can think of here is that if you didn't mention your absence in your application - if there was a question about that - because you believed you didn't have to mention pregnancy-related illness, and the new employers now believe your application form was inaccurate.

In any case, you need to get them to say what, in their view, the problem is, preferably in writing. As it appears they can't refuse to give you a job due to pregnancy-related absence, they need to be very careful what they say!

If you're eligible for a union, I suggest you join it immediately.

LittlePaintBox · 03/04/2019 13:19

PS YANBU to be angry. I'd be fuming, and very upset, to have this thrown at me out of the blue.

blueshoes · 03/04/2019 13:21

Is there anyone, like your midwife or GP, who could write a letter confirming the HG.

As regards your previous employer, under GDPR, you should be entitled to file a subject access request asking for a copy of the reference as well as your sickness record. This will help give you some context as to who wrote the reference (HR or your manager) and what it says. The sickness record will also help explain that it is pregnancy-related, if your new employer does not believe you. Your previous employer must respond to your request for free and without delay and in any case by 30 days.

I would try to go down the GP/Midwife route asap, failing which you should email the new employer (including HR) to explain it is pregnancy-related. Once the new employer is fixed with notice it is pregnancy-related, it will be very difficult (and a potential legal battle on their hands) for them to withdraw their offer as there is evidence on file of your previous condition and potentially discriminatory.

Neither organisations sound particularly professional.

Original poster
HelenOn · 03/04/2019 13:24

Thank you for all the advice and replies Thanks

I phoned the company's HR department (it's in a different location to where I'll be working).

The woman on the phone said they did actually state it was maternity related in the reference they sent back (my employer didn't tell me this over the phone).

She also went on to say that in no way should this impact me, but obviously things have to be confirmed and cleared with who actually hired me.

She then went onto say that there is a query on me, but it isn't reference related. And they would have to have a chat to the person who hired me about it. I said what would it be and she said she didn't know...

The only thing I can think of is my DBS. The person who hired me did say on the phone today (before we spoke about the reference), that it hadn't come back and DBS people had told her so. But what happened is I never got the email I was suppose to from DBS people, and so never sent it off. But that's now been cleared up by me as my new employer forwarded me the link and I've done it. I just have to wait for it to come back.

For clarification, it will be crystal clear!

OP posts:
TheGrey1houndSpeaks · 03/04/2019 13:26

Maybe op could confirm that the years employment wasn’t part of a qualifier for the new position - eg. new job requires three years relevant experience in a certain area which op only has if she counts the year where she was employed in that role but wasn’t actually doing the work.
The absence would be relevant in this instance, whatever the reason.

blueshoes · 03/04/2019 13:26

Bear in mind that even if they do not withdraw the job offer, they can quite easily engineer it for OP to not clear probation. I hope the manager is sensible about this but if not, OP should not blame herself if she finds herself somehow set up to fail.

My company would not do this but there are lots of people out there who are not reasonable.

Flaverings · 03/04/2019 13:28

I would ring up and ask them what the situation is as this morning's call has left you unsure whether they are still expecting you on Monday or whether they've rescinded the job offer.

stayathomer · 03/04/2019 13:28

Fingers crossed this all gets sorted out for you soon OP

NWQM · 03/04/2019 13:29

So did the DBS problem come up in the same conversation?

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