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 ) ?

The interesting thing is that your losses stemming from this workplace accident now also appear to be loss of prospects in preventing you from getting the new job even thou OH has cleared you for it. Old department may have screwed themselves (if you win the claim against them of course)

Yes. Still employed by old department (although on career break at present - had hoped to move and put all unpleasantness behind me) I'm in limbo now

I would have thought old department HR (particularly when they saw my positive performance report)and given there's litigation ongoing would at least be silent as to any other matters. But instead HR sign off on "attendance unsatisfactory due to level of sick leave". And now it looks like new department will withdraw the job.
I think my lawyer's happy- I'm not. I want my career back. This could go on for years:(

1. No one can give you advice about defamation without seeing the whole reference because the court will look at the meaning of any part of it in the context of the whole.
2. "her attendance was not satisfactory as she took too much sick leave" I wouldn't say on its own its defamatory at all because all it is saying is that you didn't attend because you were on sick leave. Unless there is somewhere else a hint that you were lying (not ill but pretending), a reader would take that at face value. It's not 'seriously harmful' to reputation (Which is the test) to say someone is very unwell and needs a lot of sick leave because a reasonable person would feel sorry for an ill person!
3. A reference is subject to qualified privilege. This means that if you get something wrong or make a mistake when writing a reference, that is a total defence to a defamation claim.
4. You said: I read that you lose qualified privilege if you disclose immaterial facts. This isn't correct. The whole point of qualified privilege is to protect people writing references so they can do so honestly and frankly and openly even if they want to include negative things. I think you may be confusing a public law doctrine that for public bodies, to claim qualified privilege anything in the publication (which here would be a letter of reference) disclosure must be in accordance with public law duties so (for example) circulation to too many people with no interest in receiving the publication or including excessive information that is not in accordance with any public law duty may undermine the claim to QP.
5. Qualified privilege is lost if the defendant is proven to be malicious. This in law is a very serious allegation and very hard to succeed on because courts don't like to find people guilty of malice.
6. If you want defamation advice, you need to take it to a solicitor.

Wow. That's really interesting.
Re: point 4 and excessive information HR sent with that death knell reference an absence record since 2019 each absence reason categorised as "work stress". I thought that was excessive!

And prior to any references being sent, I wrote requesting HR not to disclose my medical records to any prospective employer. They went ahead and did exactly what I asked them not to.

And for good measure, HR left out of the absence reasons my disability which was on the medical certs submitted during sick leave.

Each cert stated "X due to work stress" where X is pre-existing registered physical disability that was exacerbated by the accident.

Re: point 4 and excessive information HR sent with that death knell reference an absence record since 2019 each absence reason categorised as "work stress". I thought that was excessive!

And prior to any references being sent, I wrote requesting HR not to disclose my medical records to any prospective employer. They went ahead and did exactly what I asked them not to.

This sounds like your real complaint maybe breach of privacy/breach of confidence/data protection rather than defamation but (summarising complicated legal defences across a number of causes of action in a very general way for short hand purposes) if there is a good and lawful reason for the disclosure/ "public interest" in disclosure to the reference seeker then that may be a defence.

It maybe this is what you were thinking of when you were referring to excessive information.

You need to take advice from a lawyer because you are only going to get sent off down wrong paths by partial comments from strangers on the internet.

Thank you. Have to say it's great to get perspectives on Mumsnet. Amazing level of legal knowledge and also inside track of those working in state bodies. I appreciate the viewpoints. I'm keeping away from defamation but have to say, find the law on it quite interesting - it's very complicated. What is truth?

Just to clarify though:
(a) asking an employer not to share your medical information is not the same things as them disclosing your sickness record, and
(b) in this case they didn't need to share either the sickness record or the medical records - both the current employer and the "potential employer" are the same legal entity, as this is an internal application, and that information is already in the hands of the employer. In other words, they already had that information.

On that basis, if the nature of the legal action against the "current department" were such that there may be grounds for the "potential department" to be concerned, there would be legitimate grounds to consider that information. Any separate legal action challenging the legitimacy of that action would be highly complex and therefore likely to be very expensive - and risky since you may not win.

@WigsNGowns I think that you may not have noticed, but the OP's "potential employer" is the same employer that currently employs them / the same employer against who they are taking action for injury. It is not as clear cut as having sent information to a different body - the employer is the same entity in all cases and already has all the information on record. I do think the employing department is being vindictive (that is something different), but in effect all they have done is highlighted information that the employer already had but perhaps had not noticed / paid attention to. In the circumstances as well, I suspect that absolutely nothing has been done without using the very extensive legal resources of the employer - which is not to say that their lawyers have got it right, since there are often more legal opinions than there are lawyers. But the Civil Service are unlikely to be failing to take legal advice on every move when there is already an existing claim against them.

Hi, it's not an internal move. I should have clarified.
It was a publicly advertised job- so not an internal transfer.
That's how I moved departments previously. I do know back then , my consent had to be obtained for release of absence record because it was considered "external".

This new job that's in the picture now was externally advertised so Joe public could apply.

and you can't take into account after offering Joe public a job in 2024 ,what exactly caused his work stress on 8th April 2019? If your own oh has all Joe public's sick leave records and says Joe is good to go!

For myself, I'm going from a public assistance type role (think pensions ombudsman for all the civil service ) to a regulatory role (think compliance based in dept of business and trade) at a completely different grade (pay is higher- different grade structure). These aren't the jobs of course!!!
And it's external recruitment so new department should not have been told the type of illness I had 4 years ago.
The oh has all the details and is giving me the all clear to work for new dept but the new department won't accept.
(I found out that oh himself explained the rules referred to above to the new department!!).

What I do find odd is that if there's a concerted effort to I push me out (for having taking a case because of the accident) why is oh saying I'm fit for the new job?
Doesn't that rather put a spanner in the works?

It's all really frustrating and stressful. I think the error here is not so much sharing absence record but sharing absence reasons ie each absence is stated as "work stress".
In my old department an absence record just stated either "illness" or "injury". Who's going to employ someone when they see absence record -:two months off with "work stress"? And that's not what was on the medical cert!!!

It does not matter whether the job was advertised internally or externally - it is still the same employer. And they can take into account something Joe Public had in 2019 - if they know about it, and provided that they are not discriminating (in the legal sense). If Joe Public's employer shares his sickness record from 2019, or says his attendance was unsatisfactory, then they absolutely can refuse to confirm the offer, no matter what OH say. OH advise, they do not dictate.

I realise that this is desperately unfair to you, but there is a difference between "unfair" and "legally unfair", and so far you haven't shown anything to be legally unfair. Legally there are no differences in what an employer can and cannot do whether or not it is external or internal appointment.

But without attaching criticism in any way, because I think your actions are right, you surely must have realised that your career with this employer was finished the minute that you instructed lawyers to bring an action against them? The Civil Service has no reputation for being forgiving. And I say that as someone who, many years ago, also brought legal action against my then employer - but in the full knowledge that the minute I went down that road, I was discussing a termination / settlement offer (or court if no acceptable offer was made), not further employment.

Well legally unfair (data breach/breach of confidence) misleading etc is sharing details of reasons for my absence ie "work stress" . And that, in circumstances where "work stress" were not the full absence reasons, and also where I had written in advance saying dont share.
The oh is backing me, which is interesting.
I don't see why I have to be blacklisted for the rest of my life, because I suffered an accident (while already disabled) in the workplace.

And yes, I did think my career was finished with the old department which is why I took a career break, applied for new jobs and got another one in a very different department. Get oh approval for it. Get great performance reviews. But apparently my old department can scupper my career because... They can?? It doesn't even make financial sense.

I do agree with you Neriah about the culture but it seems such a huge waste of public funds.

Vindictive does feel like the right word here. OP any idea what they would have to gain from it?

And obviously oh hadn't got the message!!! That I'm to be pushed out.

I think it's cultural. Sue us and you'll never work again sort of thing.

That deters others.

Hi OP

Put yourself in your employeers shoes and that of the place you are hoping to get a job. I hope that helps

Either way, good luck

Btw - ACAS is really good

Well legally unfair (data breach/breach of confidence) misleading etc is sharing details of reasons for my absence ie "work stress" . And that, in circumstances where "work stress" were not the full absence reasons, and also where I had written in advance saying dont share.

I do think you are missing the point -
(a) you can ask them not to share this information, but you cannot prevent them from doing so, and
(b) legally they haven't shared it with anyone who does not have a right of access to it any - the employer shared it with themselves

To be balanced - and I am trying to maintain a balanced view even though I agree that they are being deliberately vindictive - did you "share" with your potential new (Civil Service) department the fact that you are suing the Civil Service? I doubt it, because I wouldn't have advised it. But that fact would certainly colour the view of many employers about an internal candidate - and whether the job was advertised externally or not, you were an internal candidate.

It's crap, I get that. And it's not fair, I also get that. But realistically your employer has zero interest in mitigating your claim. If they did they would have leapt at the chance to relocate you somewhere else long ago, never mind now. If they have no interest in mitigating the claim, as I told you previously, they are being 150% clear about where this is going, and the only question is about how long it takes. Unless you are very well off (and if you were, would you be looking for a job anywhere?) they can play the waiting game for a very long time. It's in their interests to do so. It won't cost them a penny more to play the long game.

Instead of focussing on the employers games, isn't your time more usefully spent finding out what your lawyer is doing to bring all this to a conclusion, whatever that conclusion is?

And don't assume that OH is "on your side" - they are on nobody's side, and if they are doing their job correctly, they shouldn't be either. They have made a recommendation - the employer has decided not to accept that recommendation. And, as I have also said to you several times, probably on legal advice. It makes no sense to me to want to avoid mitigating your potential claim unless that is what the lawyers are advising them to do. And there is no way that lawyers aren't issuing the instructions given that there is a claim already on the table. Although not Civil Service, I know the public sector well; and once a claim hits the table we are not allowed to breath without legal advice, never mind act.

I think it's cultural. Sue us and you'll never work for us again sort of thing.

I corrected your comment for you. That is what they are saying. As I told you before, nobody would claim the rest of the public sector is perfect, but the Civil Service is notorious. Most of the public sector wouldn't have an issue at all, and I am fairly sure that your pension is transferable.....

Sounds like they've taken injury off as you said don't share medical records which backfired as now it just says work stress which is not a medical record.