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 ) ?

It is usually two years, but it would depend on what was asked, and also context - so if there was significant and lengthy period ( say 4 years) we would have to say so. Although that would be unlikely because with few exceptions we be looking to dismiss after a year.

I'm a bit confused by your solicitors comments though - surely being rid of you would be to the employers benefit? And equally, it seems odd that this would be being dictated by HR - our legal people wouldn't let HR dictate strategy over anything that is subject to legal proceedings.

Did I misread you - I thought OH had cleared you for employment? Is this an internal appointment?

Just rereading that. Am I correct that both the old job and the new job are with the same employer? I'm assuming Local Authority, NHS, or Civil Service.... if that is the case then I can see that this might be much more complicated. If an existing employee was suing us for injury, and assuming that we haven't accepted liability or there was a dispute on the facts of the claim, we would almost certainly not allow that person to obtain an internal alternative employment unless either (a) the existing legal claim was resolved or (b) we could be 100% satisfied that in no way whatsoever could the new rule worsen the existing situation - either legally or medically. The latter specific would be very hard to do. There would be a better chance of another local authority agreeing - because they wouldn't be enmeshed in the risk.

It's not an internal appointment. It's another government department. Oh has cleared me for this new department. (He has full details of all my records including all absences ).
But new department have asked him to revise his favourable report- they said they have to have regard to the absences as disclosed to them by the old department.
(The 5 years) .

Is this civil service? Because all departments are associated employers / in effect the same employer. Otherwise it makes no sense because you obtaining alternative employment surely mitigates the claim?

Yes it's civil service

Tricky. The old job shouldn't be disclosing things. But it's too late. I'm surprised the new job knowing the context, the oh report and your lm performance report won't take that as clear. Maybe apply outside of gov roles. Annoying for pension.

It's all the same employer if Cs though so not really relevant.

Does it not mitigate the claim if new department take me on? They are completely separate no?

How does my starting another job in a different department worsen the existing situation? Surely, it limits liability. Particularly when oh says I'm ok to do the new job?

I genuinely don't see a risk if oh has said I'm fit for the new job?

I don't include work history on my CV that I know won't give me a glowing reference.

Well I've been there and still am for the last 18 years so can't fill that gap!

Just to say I appreciate all the responses. It's really helpful particularly getting perspectives from those working in local authorities etc. I was so shocked when I received a copy of that horrible reference. But going forward with a steady head, I can see that certainly defamation is not the way to go.
I'm not going to let myself be triggered/upset.
My pension is quite valuable. I was 10 years in another dept prior to 18 years in this one so I am concentrating on ensuring that pension is not jeopardised.

I personally would never put that in a reference as "her attendance was not satisfactory" is personal opinion. They should have just written the number of days taken.

I understand that you don't. But their lawyers will. It's like I said. If you work for my employer, 1234 City Council, and have a claim against us, we'd be delighted ( albeit disclosing sickness) if you went to work for 6789 County Council. That mitigates our potential loss. Then we just have to deal with the claim. Bye-eee!

But if you worked for, say, Children's Services, and then got a job in Adult Services, that in no way mitigates our losses, and if anything goes wrong with that employment then it could make our risk significantly worse. For example, your sickness in Children's is due to occupational stress caused by poor management and excessive workloads. We can't guarantee the role in Adult Services won't be stressful, and if you suffer further injury then we are in a worse position. But another Council decides that if you can't cope with the workload, that's on you because you assured them, through OH that you were OK.

The issue is context - and obviously I'm pulling examples of of thin air. But I can absolutely think of many reasons why the same employer might be loathe. Not least, given this is CS (and I have union friends who are CS reps, so some awareness of the culture) and parts of it (read, lots of it) have a real tendency to prefer to force you out if you cross them. I get why you want to stay in their employ. But legal settlements often end up with part of them being the parting of the ways.

Given this is CS I suspect it is very unlikely that HR acted as they did without the knowledge and blessing, if not the direction, of legal services.

So that's why my solicitor said they're digging their heels in!
Not sure what I can do at this stage. Since they've obviously decided im out anyway. Seems so unfair. I suppose I can lodge another claim for this new breach (that's what solicitor suggested no surprise- He probably sees an open goal ) but I just want to work.
As to outside jobs, I did a few interviews. I rang after one refusal and they said the feedback wasn't great from my current employer?? Nothing I can prove of course.

But I'd rather work than just wait for court cases to resolve. Terribly frustrating particularly when my career was excellent until that accident.
And to see that oh report saying I'm fit for the new job makes it even more so!

I can see you’ve had some good advice already OP, the only thing I’d add is that the “satisfactory” comments is actually in your instance going to be factual rather than a personal opinion. As it is all within the Civil Service, there is specified levels of satisfactory/unsatisfactory attendance and policy, so when they write “her attendance was not satisfactory as she took too much sick leave” that is not them passing an opinion on your amount of sick leave, it is simply them saying that you were absent enough that it took you below the ”satisfactory” level. I also work in CS and had a colleague awhile ago in quite a similar situation, got the union involved and because it was internal and there are those set levels of unsatisfactory/satisfactory attendance, it is a factual comment rather than an opinion and so if it’s factual & true, it is not defamation.

Well it's good to know its factual. But is it true? When that issue is subject of ongoing legal proceedings? How can hr prove it's true in these circumstances?

Do you have a copy or knowledge of your sickness/absence records? And do you know what your place of works “acceptable levels” are?

On the face of it, irrespective of what investigations are ongoing into causes of illness etc, it is a simple question easily fact checked, for example your employer may specify that 4 periods of sickness absence within 2 months triggers the “unsatisfactory attendance” issue (I know at my work if you flag a certain amount of days sick then it would be classed as unsatisfactory and so you’d be referred for extra support if required etc). That means if you have had 4 or more periods of sickness absence within the 2 months then it’s a simple, yes, your attendance was unsatisfactory due to sick leave. That’s not an opinion on you being off, it’s just a true fact, or for example it may specify that if an employee’s attendance drops below 75% THAT is “unsatisfactory”. So if you’ve got 65% attendance due to sick leave then yes it is a true and factual comment that your attendance is unsatisfactory due to sick leave.

There will be reasons behind the sick leave and that may be subject to ongoing investigations, but on the face of it, your employer will have an attendance policy and you either were off sick or you weren’t, you either hit the attendance requirements or you don’t.

I would try not to think too much about that comment honestly x

Well my line manager ticked the box that my attendance was satisfactory. But on same page HR wrote my attendance was unsatisfactory due to too much sick leave.
Of course I'm thinking about it because I've lost a job over it.
If it's ok for them to write that every time a reference is sought what chance have I of getting any other job?

If they're going to say that, then yes, your chances will be pretty low.

Not all employers take up references though. Or you could temp? You might be better seeing this process out and hopefully negotiate a neutral reference as part of the settlement?

HR can only have come to that conclusion based on, as I mentioned, there being a threshold e.g. 75% and your attendance being below that %.

Unless you are saying that is factually incorrect and that you were not off sick for the amount of time they say you were then it is a true fact and so it’s not defamation.

If they are asked about your attendance when you are applying for other jobs then the response will be the same yes, because it’s a fact.

@feileacan this sounds like you have a claim in progress against your former department for a work related injury. The hardball your solicitor refers to is they do not want to admit anything as it may jeopardise their case.

Until your sick absence is accepted by/proven to your original dept as resulting from a work related injury they are stating their belief your sick absence was unsatisfactory.

Your solicitor is right this needs to be added to your claim because if you win your claim the sick absence is recoded (technical term) so it is not treated as standard sick absence e.g. it doesn’t count towards 1/2 and no pay dates etc. A remedy may include an amended reference.

This is shit because it is stopping you getting a job. The other dept can appoint based on the OH report but it is highly likely they will wait for the outcome of your claim as an impasse has been reached and can only be resolved by your claim being resolved.

That last post sums it up in a nutshell! Thank you property lover!

Are you currently still employed by the old department?