Difficult nanny reference situation... what would you do?

[Gidleigh]

Some time ago, I gave notice to my nanny as there was a chance that I may be staying home full time. Given she had 4 weeks to work out her notice, I gave her a written reference letter so that she may find a new job. The reference letter was an honest positive despite her being off sick on a number of ocaasions. I felt at the time that I shouldn't mention this point as my view of many sicks days may not be someone else's view. In any event, once I gave her the notice although she was pleasant about the whole situation, she subsequently called in sick for the rest of the notice period.

Since she left I have gotten several calls (over 20) from agencies and families wanting toe verify the reference and in the past I have answered all the questions they have asked me honestly. Although no one mentioned time off sick so I didn't volunteer despite how she ultimately left my emloyment in the end.

One of the families who rang me for a reference called me back to tell me that she had offered her the nanny job but did not show up on the first day. The agency called this lady later in the day to say her boyfriend called to say she couldn't take the job. Obviously, the family and agency are all upset about this and the family rang me to jusst tell me what had occurred.

So last week, I get a letter from a nursery school wanting a their written reference form filled out because my old nannny had applied for a job there. At this point given the history (she has left me over a year ago and the multiple references already provided) I feel I have done enough and I feel I don't want to get involved giving references where my original concerns about her (absence etc) would actually be an issue. Do you think there is a legal obligation for me to respond and lastly what are your opinions.

flowerbeanbag, I didn't get the impression that the legal position was clear cut so I was merely soliciting other views. I think your views are sensible and legally sound don't was not trying to prove it at all.

The latest incident occured despite the nanny being vetted through a very "highly reagarded" agency. I was really surprised how cursery the questions from both agency and families were. This is the reason why I think the family offered the job to her and later got burned.

I have at least learned one thing which is that the agencies who called me are not ones I would use given their lack of thorogh checks.

I don't understand why you cannot just fill in the form accurately?

Pooka, I started to fill it out but got tired of the constant requests and at some point just wanted to let bygones be bygones....provided that I'm not obliged..

Lucy, as you will know, a negligent reference can be acted upon for damages.

I don't know that the criteria of providing a reference is limited to a specific number of jobs?

What happens in the US, is that a lot of employers are doing the 'date reference' which means that a former employer, for fear of litigation, may only confirm dates of employment.

As a solicitor with 15 years experience who knows nothing about employment law, can I just say to "as a law student"

Grammaticus, I DID point out I have nearly no idea, I just don't like the presumption that if you don't do as someone else would like some mysterious body / the nanny herself is going to come along and sue you for negligence. I just think that is highly unlikely!!!!!!

This is actually a helpful thread on nanny reference problems; Squiffy giving good detailed advice.

There has been case law in terms of negligence and breach of implied contractual term around this LadyMuck, although you are right to identify that the risk is fairly small that someone would bother to bring any kind of case against you.

I just think in this instance it's nothing controversial really, and surely not worth any legal risk which can on this occasion be easily avoided.

Lucy - not offended Just rushing about a bit today and have a slightly embarassing tendency to assume everyone will believe me when I give advice on here given how often I do it, and also an exaggerated tendency to get irritated when people give incorrect legal advice. Nothing personal at all. Just for future, don't use directgov as a reference site for you as a legal professional. It is a good site, but doesn't by any stretch of the imagination cover all the little nuances and details of any area of the law, and is aimed at the man in the street rather than legal advisers.

x-post with everyone. Gidleigh I realise you weren't asking for proof, I was just offering it if you would find it useful, as there was a contradictory view being offered.

flowerbeanbag, I appreciate your thoughts.. I will maintain a balanced view if someone should call again.

I am hoping in the meantime that no one will... oh well

the nanny was then sick for 4 weeks after you gave her her notice?

what did she say was wrong with her?

did you pay her? - depending on what your contract says about sicky pay, i get 6 weeks but the norm is either a week or even basic ssp

but back to the reference - i would say that she was employed by you from xxx to xx. and that she took xxx number of sick days, and that 20 of them were in her last 4 weks of working

sounds to me she was taking the piss out of you and this annoys me

Thanks flowery, it is an interesting issue. I don't know if I am misinterpreting, but I don't think there's any issue with saying I prefer not to give a reference at all. Neither negative nor positive? Squiffy doesn't seem to allude to that anyhow? Only the options should you decide you will give a reference to begin with?

....I wouldn't use directgov in a professional capacity as I live in an entirely different country. Just offering my opinion based on limited resources I was aware of. Am in no way qualified to give professional legal advise in the UK nor anywhere else yet for that matter, nor did I proport to be?

Oh, my mistake again - it's midnight where I am at the moment I misread the beginning of what squiffy said. However, there was that interesting article from the times based on the advice (or so they claim) from various UK lawyers which clearly indicates you are not required to give a reference at all?

There is no legal obligation to provide a reference at all (unless this omission derogates from the employer?s usual practice for other employees and amounts to discrimination or victimisation for asserting legal rights). But where a reference is given it must be true, fair and accurate.

Taken from:
business.timesonline.co.uk/tol/business/law/article1472127.ece

I'm terribly sorry if I am completely wrong, which I probably am? I just think it seems unfair for years and years to be required to answer to various agencies, families and whoever decides to ring you!

I'm not surprised you haven't been asked about her sickness record. In my experience most nannies take very few sick days and tend to come into work even when not well because they understand how disruptive their absence is. I would never have asked previously although having had my fingers burnt it is now one of my standard questions.

Blondeshavemorefun, she told me she was sick with the flu and after 5 days, she sent me a sick note from the GP which didn't state flu but something completely different..... I didn't see the point in having a drawn out discussion about the difference with her at the time.. probably was more telling of her character and was glad I gave her notice. In total she 3 sick notes during the duration of the 4 weeks.

Before notice I paid her regular pay but during the notice I use SSP. Her contract was always SSP and despite this I paid her regular salary in an effort to be "understanding and fair" before giving her notice but it became quite ridiculous in the end and reverted to the government prescribed SSP during the notice.

glad you chnaged to ssp -sounds to me she was pulling a fast one

there are LOVELY nannies out there (me ) and hope if you ever need to find another one, you will find a good one

wonder what she has done for past year, and why she isnt using them for a reference

Mrs Wobble, I agree most good nannies rarely take sick days off. My current nanny is wonderful and I now have a very good reference point in terms of comparison. But I do think there are many also who are not so dedicated or profeesional and it would be wise for all employers to ask as many detail questions about issues they would need checked even if it may appear to be the norm.

There is no specific statutory requirement to give a reference set down in black and white, no. But where there is an 'implied contractual term' or it is standard practice in a particular type of employment, meaning that it would be impossible to get a job without one, a reference must be provided - it is a contractual duty and financial loss for the employee could result from failing to do so, leaving the employer legally vulnerable.

'Years and years' down the line, fair enough, because at that point it should not inhibit a person earning a living. But a year ago isn't very long and I think there is an obligation to give a fair reference in this case. If there is a form to fill in, it's not hard to do and why not just do it?

there are reasons why nannies have time off

for example - i had 2 days off in 15 years - both pre planned for ops

then 2 years ago a few months into my job i had a dvt, that went to my lung and collasped it - had 3 weeks off work - fully paid

so tech my health look bad at moment if i were asked

Gidleigh, how did this request for a reference come to you? In the post? Did you sign for it? On e-mail?

If you simply don't respond, what are they going to do? Ask again or send you to jail? I'm thinking they'll ask again. I would let them do a bit of chasing before I was cornered into giving a reference I didn't want ti give. And then I would make it factual and a bit incomplete.

You could also drop the name and phone number of the nursery where she worked onto the reference and let them do your dirty work for you.

Ah, this old chestnut.

The reason why it is difficult to find a specific legal statute is twofold: firstly, the obligation is not expressly defined under any of the employment law statutes, but is implicitly defined by the tort of victimisation - whereby a person who is unable to obtain employment or is unfarily disadvantaged by not being able to obtain a reference could potentially sue for victimisation. Secondly, the courts increasingly look to the EU to interpret employment reference issues, and the EU is by no means 'static' in interpretation of this area. So, any good employment lawyer is going to tell you that you do have to provide a reference or you will be exposed to the possibility of a lawsuit.

If anyone is really interested here is a good documemt to chew over. I would not go so far as to say that every single comment is gospel, but it does provide a very good summary of the key cases and gives you a good idea of why this is such a minefield.

What a nightmare! It really is a minefield as I am only now beginning to discover. Will see how this all unfolds.. thank you for your comments and advice.

Another article with regard to employment references.

I do feel that in the childcare profession it is usual for potential employers to want references dating back quite some time, often the last two jobs at least. I also feel that it is usual for jobs not to be offered without there being at least one satisfactory reference. However, this is just my personal view and is based on my personal experience, which may or may not be typical. Other childcare workers may be able to confirm or deny that this is usual practice, from their personal experience.

Does leave me wondering though: How long after someone leaves a job, should that employer still provide a reference? 1 Year, 2 Years, 5 Years, 7 Years, more?

Gidleigh - I feel you have a moral obligation to respond to the reference request. However, I do not feel that you have to complete the form the nursery has sent you... you could send your own written reference.

If a former employee is asking a former employer for a reference, for instance, for a job they did 5 years ago, it means either:

1. They have been out of the work force
2. That was their last satisfactory job.

I've had to use former academic references after I decided on a career change. It was always met with good humor, although one thing I did, out of courtesy, was to ask before I used someone as a referee.

Perhaps this is what the OP should do - tell the former nanny that she would appreeciate the courtesy of knowing in advance... This may stop the flood

ilovemydog - There is another possibility...

1. The person is currently employed and has not told their current employer they are looking for a new job.

In that situation the previous employer (and possibly a few before that) would be used as the main reference. So in the case of nannies, that previous employer could be 3, 4, 5 or years in the past. Agree that in such a situation, a nanny should be asking the previous employer if it is ok to provide them as a reference.

If it was me I would give the facts they ask for on the form such as number of sick days. Didn't you mention she took 35 sick days in 8 months - wow! OK so lots of them were at the end and you could mention that on the form but giving facts like this doesn't get you in to trouble and you are helping a future employer make a decision on whether she is the right employee for them. Crikey I think you're very nice to have given her lovely references not mentioning her sick days etc - these facts are important to prospective employers. I think if you are fed up with being deluged with reference requests then a more accurate 'warts and all' reference will probably put a stop to future requests as she'll be trying to eliminate you from her CV or put forward alternative referees. Just stick to facts and don't give opinions or subjective comments about her performance and you should be fine. Morally I think you have a duty to let the nursery know what she is like even if legally you don't. Then its up to them to decide if they still want to employ her.

Personally I would get a bit of satisfaction from telling a prospective employer about her sickness track record especially considering how she behaved when on notice.