Defamation in work reference or not?

[feileacan]

Is it defamatory to say in a work reference"her attendance was not satisfactory as she took too much sick leave" if all that sick leave is currently the subject of legal proceedings (personal injury caused by work ) ?

At the very least I'd expect them to have qualified it with "it is my opinion that" or "I believe" because there's no one definition for "too much" sick leave and it also depends on what adjustments were in place and how they supported you to be in work, and whether your leave was due to a disability (in which case it shouldn't be counted). For example, I've got quite a high absence record which I wouldn't have if my employer made the reasonable adjustment to let me work from home when I have disability flare-ups.

I'd contact ACAS or your union and see what they advise because references have to be accurate and "she took 5 days' absence leave" is a fact so it's accurate whereas "her attendance was not satisfactory as she took too much sick leave" is opinion based on a fact so it's not accurate because it's just one interpretation of "she took 5 days' absence leave" (change duration of leave as applicable). Can you use another reference as legal proceedings are pending and therefore is your employer even allowed to comment on your absence at all if it's the subject of ongoing legal proceedings?

IANAL BTW.

This lays it out pretty well: https://www.samuels-solicitors.co.uk/news/lost-job-bad-reference-defamation-libel-slander
Also this: https://www.gov.uk/work-reference
Edited as second link didn't post.

Thank you so much for that! I'm just in shock that they've been so malicious. My manager actually said my work was great! But HR person put in that

Defamation is quite hard to prove, people tend to bring claims in negligence, breach of contract and or discrimination for poor references.

I would say it’s a foolish thing for them to do. Most companies these days (aware claims can be made by the former employee and the new job) tend to stick to facts. So they can include you had x sick days, but certainly not include you took “too much sick leave”.

You say you are bringing legal proceedings for injury at work, I suggest you speak to your solicitor about a potential claim and probably at least sending a warning letter in respect of future references.

Thanks. My solicitor did write to them- in advance! Asking not to disclose medical records.
Then afterwards, wrote asking they correct what they had said IE to say attendance was satisfactory in all the circumstances.
Each time they just said no.
It's public sector.
I think they're trying to make an example of me or something.

It is not defamatory if it is true. If you took off more days than the employer considers acceptable then what they wrote is true. The reason why you are off is additional information, but if you had a lot of days off then the reference is not untrue.

But the reason I took sick leave (the workplace accident) makes it a different matter surely? How can an employer say unsatisfactory if they know about the iidb I got? If they are in the middle of legal proceedings about that accident?

Surely it's misleading?

My manager gave me a brilliant performance reference but apparently that doesn't count.

An accident however could have been your own fault or you were off 2 months when you probably could have been back after 2 weeks.

@feileacan I don’t think you can ask them to say it was “satisfactory”, because from their perspective it was not (and their argument will be if they said that the job you go to could sue them later if sick leave became an issue).

The fact you are suing for a workplace accident, or receive IDB does not mean that you could also have taken too much off on sick leave (and that possibly will be an argument in the legal proceedings as that will go to your compensation).

However, I am surprised they are not being neutral and just saying you had x days off work (they are allowed to do that). Then it’s up to you to explain at any interview.

I am surprised they didn't state the facts to back up the statement but if you had x days off in y weeks than that is a demonstrable fact. It is not misleading if it is true.

Yes there may be mitigating circumstances but they are uner no obiligation to write an essay if they don't want to.

Given that you are suing them, I would doubt they will be willing to give a positive reference. If you reach a legal agreement with them, getting a neutral reference as part of it may be a sensible approach.

Well old job are protected from the new job suing them because new job got oh report that said I'm fit to do the new job. Both departments use the same oh.

A workplace reference must be factual and not opinionated. 10 days leave in one place would be acceptable but at another is unsatisfactory.
It should be if you can’t say anything nice don’t say anything at all

And the oh had all details about the personal injury case, the sick leave etc before he said I was fit for the new job

And the new job want oh to revise his report saying I'm ok! On the basis of what the old department said. This is a mess.

Actually, I sent the old department the oh report which says I'm fit for the new job. And asked them in light of that oh report will you just tell new department I'm satisfactory. Nope.

OP sounds like it’s an internal job move so the risk of suing possibly not such a problem; however, what you seem to be missing is that people can take too much sick leave (so that might be being off for every sniffle, 6 months for an injury that would take 2 weeks to recover).

The fact that OH says you can do the job is irrelevant to the issue of sick leave. You could still go off for numerous days for other things.

Companies want to know about sick leave because if someone is constantly off then it will cause problems. So someone who had 6 months because they were in a massive car accident, but now fully better, probably not going to worry you. Someone who is having a couple of days off each month for coughs and colds will be a problem.

As I said you have solicitors on board they can best assist you.

To be fair, we would disclose the sickness record regardless of the cause - local authority. We wouldn't comment on satisfactory or not though. Just the number of days in whatever the reference period is ( so, for example, 49 days over 1 occasion in a two year period). And if asked we would disclose sickness management stage (this is usually only asked by other local authorities though). And we would not consider either the new employers OH report, nor would we engage with them in any way.

It is up to the new employer to ascertain what they want to know and what they think about that, just as we would. It is not uncommon to employ someone with a disclosed sickness record and we would usually rely on our OH report to make that judgement. I'm surprised if your new employer isn't satisfied with their own OH recommendation.

Thanks for all the responses. My solicitor says the other side have dug their heels in. Not sure what he means?.
It appears that are going to make it really hard for me to work anywhere else. Apparently this is not uncommon.
So soul destroying.
At least I know my manager thinks I'm great!

A workplace reference must be factual and not opinionated. 10 days leave in one place would be acceptable but at another is unsatisfactory.

Exactly- if it is quantified, then it's easier to see if it seems unsatisfactory to the reader (and I'd have though if OH says you're okay, it is.)

Thanks Neriah.
May I ask how far back do you go with sick record?.my employer sent records since 2018!
Also the problem now is that oh is sticking by his report and new department aren't accepting me. Just ignoring me - keep saying we will get back to you - for last 8 weeks.

May I also ask would you disclose the cause. As well as the number of days my employer disclosed the cause.

I think references fall under qualified privilege. But they still need to be true or if an opinion give the basis of the opinion.

Ie not satisfactory as X-rays off sick.

They don't red to say why off sick (as could invade your privacy) but they need to justify their comments with evidence.

Ie they can say they thought your sick record was unsatisfactory as off 2 days. Most reasonable people would say that's daft but it's fine if that's their belief (and the facts are true)

So at most they need to amend the reference to say how many sick days they are thinking is unsatisfactory (and the period that's over for context)

They can't mislead but they don't need to be helpful as such.

I've read about that qualified privilege. I read that you lose qualified privilege if you disclose immaterial facts.
So (and this is why I put this in legal discussion!) If employer sends too much information, in this case 5 years of sick leave with exact details of sick leave reasons - does that "defeat" qualified privilege? Is that immaterial information? I know it's a data breach but is it immaterial information for defamation purposes?

OP your posts are getting a bit confusing, the thread started off as a reference query and suing for defamation.

It appears the job you are applying for is an internal one - is that correct? You said you had an OH report that you were fit for a job, but also I think that the OH report says you are not satisfactory based on sick leave. Is that correct?

You talk about your employer disclosing cause of sick leave but if it’s the same organisation why’s that an issue?

I am conscious legal proceedings can be very stressful, but ultimately if you are looking to move departments suing for defamation is probably not going to be the best way to do it. If the sick leave (and the impact on Oh report is the real issue) then there maybe other options.

In terms of “digging heels” in that means the other side will not budge on an issue (it’s often used in legal circles when it’s felt the issue is minor and one possibly someone should “give on” but for some reason they won’t).