Bad job reference - Disability

[BeEagerCyanWasp]

Can ex-employers give details about disabilities? Can they give details of any abcences as a result of disabilities? Can they give any details about disabilities at all? Can they infer, generalise or fail to recommend you based on opinions that have been formed based on disabilities?

I though they couldn't do this under discrimination law and that there is a lot of case law to support this.

I have an ex-employer who is doing this verbally after a written reference, that has resulted 2 job offers being withdrawn.

I have an impecable work record with 'glowing' references from all of my employers except one.

I have a disability and last year there was a short supply of my medication and I couldn't access it. It really affected me and my work for a very short period. Less than 20 days.

But my then boss was really hard about it, put me through HR and even got me to ask my GP to change my MED3 note to a different diagnosis so that it would be covered under their insurance. My GP said no.

Now they are giving me a bad reference and in particular phoning my prosepctive new employers to tell that they wouldn't recommend me.

Apart from this absence my work at this position was always highly professional, timely and went above and beyond. There were no disciplinarians, performance management, warning (verbal or written) and all of my work during the employment was well regarded.

I've now been out of work for 5 months as a result of the bad reference, even though I've had 2 solid job offers, that were ultimately withdrawn.

Unfortunatey I work in a regulated industry, so this ex-employer has to give a reference.

Is this legal?

I don't think it is. They cannot give a bad reference, but can also just confirm you worked for them. I'd seek advice from a solicitor who specialises in employment law.

From what i understand you can take the ex employer to a tribunal about the verbal reference, being discriminatory but you have to have proof. Also a claim must be lodged within 3 months of the act of discrimination.

I would write to the HR department and tell them what you believe is happening, and warn them that you will pursue the matter legally if this happens again.

IANAL

This is pretty outrageous I’m on a moral level. What an absolute shit.

legally I’m not sure but I’d get some proper legal help from a Law Centre or ACAS.

*on a moral level. Fat fingers sorry

They can confirm how long you've worked there

They can specify your dates of employment

They can confirm how many days off sick

They can also confirm how many instances of sick leave you've taken

If that's going to affect how you look on paper, then you have to mitigate this by bringing it up before they do

Thanks. 2 questions:

1. The first reference was given in July, but the job wasn't withdrawn until the end of September. Which date would be the 3 month rule date? (if July, it is too late, if September it's ok). I've only just found out. I've been waiting for 3 months for a DSAR so that I could find why the offer was withdrawn.
2. How would I phrase this to HR if I write to them?

I thought it was illegal to disclose anything to do with disability, incuding absences.

I was completely transparent with the first role about absences and my disability.

After that was withdrawn, I didn't tell the second role anything (although at this point, I didn't know I had received a bad reference).

It is legal to give a bad reference and they can't lie. However they cannot give out details of disability that is illegal. I guess they can't give out opinions openly based on disability, but they also don't have to ignore it. Like if they were asked "is she good at X?", they couldn't say "Because of her disability she finds Y hard which means she can't do X well." But I guess they could twist questions so they emphasised one thing you did well, but implying you weren't good at something else. They could also refuse to give a reference if they didn't think they could write a good one honestly. Are you open about your disability in application/interview? Not saying you should be, just wondering. If your medical conditions were badly controlled, and now they are well controlled, maybe saying something about that would be helpful?

Thanks.

For the first post I was totally open in the application, got the interview, discussed my disability and my short absence in depth at interview, they were happy, saw OH, they were happy too. Then after the reference the offer was withdrawn.

Second post, after the first experience I didn't disclose anything (I didn't know I'd had a bad referecne at this point). Same outcome.

Ask both the employer and potential employer, via FOI request, to provide all references written or provided, or notes of verbal references provided within x date to x date.

Consult a solicitor. Check house insurance for legal cover

Wrong piece of legislation.

The request is made under the data protection act as a subject access request.

Thanks, but confidential references are exempt from SARs under DPA 2018.

I will check with my home insurance. Good idea.

Confidential references are exempt from SARs under DPA 2018

We have to disclose absences. I had a great colleague who’d had a tough time and oh had to get involved. In her reference I included details on her disability next to her absence record to demonstrate it was extenuating circumstances and also set out what I put in place to support her in ensuring she could reduce her sickness levels. I shared it with the colleague before sending it to the employer and received feedback that it was the most helpful reference he’d ever received as he could put it in place from the start of her employment.

If it was a short period due to medication not being available, an employer will accept that but I’d advise you to be open to get a better outcome.

There can be exceptions to the 3m rule, up to the judge but one exception can be that you have just found out.

Speak to Acad.

Though it's not entirely clear what they have done or how you can evidence it. What did the SAR show that mean you now know something?

Just put 2 references and either HR for the previous post or say they are no longer able to provide them (many companies can’t).

I have been open.

But ACAS says otherwise about absences related to disability:

A detailed reference can also include someone's sickness or absence record. However, an employer must follow discrimination law. The reference should not include any absences related to:

• disability
• parental rights – for example, maternity or paternity leave

our nhs system isn’t clever enough to separate out so HR give the absence on ESR. What’s the point of a sickness report if it misses a key amount of time? I find that disingenuous, knowing you’ll be off loads but basically lying and suggesting your health is fine. If I know, I may be able to adapt.

Yes, you are correct. Apologies.

I totally agree. But that's the law.

Luckily that level of absence isn't the case in this instance.

Thanks.

I just think that would put employers off employing people with disabilities. I’d rather know their limits, triggers and reasonable adjustments that help so I can support the employer rather than set them up to fail.

I do not think it is helpful to your efforts to a secure a job but you may also have a claim against the employers who withdrew their offer of employment, if they should have or ought to have known that the reference related to your disability

Wrong. They can give a bad reference provided it is accurate. However, a reference cannot be discriminatory and should not include details of any adjustments that were made for the employee unless they were recent and relevant.

If OP can prove what her ex-employer is doing, she may have a case against them for discrimination, which could be very expensive for them. Her difficulty may be proving that her ex-employer is doing what she says they are. She may also have a case against the prospective new employers if she can prove that the offers were withdrawn due to her disability.

OP - You need to talk to a lawyer who specialises in employment law to see if you have a case. If you have legal cover on your home insurance, contact them to see if they can help.

Who told you your ex employer was doing this and what did they say was the reason for not recommending you?

Consult a lawyer. Unfortunately something like safer recruitment requires references to be verified and some places do that by a verbal confirmation, and generally that’s a tick box but you don’t know what else is said and as references are exempt from SAR requests, it’s difficult to find out exactly what has been said.

Has your ex-employer or these other employers got a policy on references? It may be easier to start with that and see if any of them have broken their own policies. It may be hidden in their recruitment policy which if it’s regulated, they should have one detailing what the recruitment process is.