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I have an ex-employer who is doing this verbally after a written reference, that has resulted 2 job offers being withdrawn.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of work for 5 months as a result of the bad reference, even though I've had 2 solid job offers, that were ultimately withdrawn.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?

Perhaps yes. This is one arguement for non-disclosure.

Thanks, yes I think there are certianly questions for both ex-employer and prospective employer. They did know, because I fully disclosed everything to the hiring manager, HR and OH.

I was told by the data protection department of the prospective employer that withdrew their offer, as part of the DSAR, after 3 months of pushing for more information when initially hey wouldn't tell me anything.

They said it was done verbally, but that they can't give me any more details due to data protection. They wouldn't say which referee, but I have copies of all the other references which are all fully supportive and recommend me, but neither the prosepctive employer ot the ex-employer will give me a copy of thier reference or detials of what was said verbally.

It’s a Subject Access Request (personal data) not a FOI request (information helps by public bodies).

References are excluded from SARs.

I'm sure they have policies in place, but whether or not they will give me a copy is another matter.

What exactly should I be looking out for if I did manage to get hold of them?

I've already asked for evidence that the references were explicitly given as confidential, because if not, they are not exempt from the DSAR and should be provided. I have a copy of all of the other references and none of them were given as confidential.

It’s a REGULATED ROLE.

Acas' "should" is best practice, not law. Their "must" refers to law.

An employer can mention disability. But they and the prospective employer must not discriminate as a result of it. To bring a claim you would need to show that the actions were linked to the disability. If either employer cannot give a reason for their actions, you'd be in a strong position. But if they do have a "reason", then the judge would need to decide who they believed.

Could there be another reason they withdrew the offer/s?

Ours without looking to see the wording states something like that if you’re seeking another regulated role, we’ll confirm dates of employment and answer regulatory questions, there may be a few other things but I don’t think we comment on absence. If asked to verify verbally, then we reiterate what we’ve sent in written form. HR actually tried to make us move to just confirming dates of employment which I pointed wasn’t helpful in a regulated industry when people needed specific questions answered.

Thanks.

After a lot of digging, the data controller at the prospective job told me that that the offer was withdrawn due to the referee riasing concerns about my suitabilty for the role, during a verbal conversation.

I genuinely can't think of any other reason apart from my short disability related absence that they could have raised.

I was really good at the role, had productive profesional relationships, popular with service users, was never late, I was never pulled up on anything, no warnings, worked my arse off etc. I literally can't think of a single thing that they could mention.

The only blip for the whole employment was the single 20 day period of sickness due to my disability and medication problems.

Like I said above, when it happed my manager wasn't happy, called in HR, asked my GP to change the diagnosis so that it was covered under the company insurance (which they wouldn't do), openly said in front of other people that they didn't believe my dissability was a real thing, treated me quite badly actually.

Because of this I chose not to apply to renew the contract when it came up for renewal at the end of the 12 months.

What do you mean by "covered under the company insurance"?

As in the company insurance refused to cover my absence saying that my disability didn’t fall under the terms of the policy and so my old boss asked me to ask my GP to change my diagnosis to ‘stress’ which then would be covered.

I am baffled by what this means. Companies don't have insurance to cover sickness absence. What do you mean by "cover your absence "? Cover it in what way? Are you in the UK?

Were you an employee?

Also seems odd that in a regulated industry your boss would be attempting insurance fraud. Maybe you should make a public interest disclosure!

In my sector they do. Yes to employ someone else to cover my role in my absence. Yes UK. Yes an employee.

Quite.

They can confirm how many days sick you have had off. This has nothing to do with disability per se, any future employer can ask for such information.

Very common.

I don’t think this is a sickness issue op. I think this is a suitability for the role. I think the sickness is a red herring.

Whilst you are assuming it's down to a specific sickness period, can you think if there is any other reason, it sounds unlikely that a job would be withdrawn over a single incidence which had a specific reason. Was there other issues with the job?

I would consider applying and being upfront next time, see if that is helpful. At the point of references put a statement in about your former employer, worth a shot. I'd also see if any laws have been broken the only issue is that a reputation as a trouble maker will not help you get employment, sad but true

I would be thinking about whether there could be other reasons for your ex employee to be telephoning potential new employees. It’s quite an unusual thing to do, especially for a single absence of less than 20 days.

Employers *

Been in HR thirty years, worked in most industries, including many that are regulated (education, finance etc) and I have never heard of this. What sort of industry does it?

Also, surely if the insurance is to cover someone who is off, it's not relevant to the insurer what the employee is off with, it's the fact they need cover? Also, "stress" isn't an illness so I'd be very doubtful that would be covered in any policy (having managed various insurances and health cover in employment, none would refer to "stress" as an illness).

Thanks. Could be. But the only issues I ever had during the rolse were to do with my disability. If you look at case law, opinions on suitability are very often based upon managers' experiences with disabilities. Which amounts to discrimination. I think this may be what happened in this case.

There were no other issues at all. None. I was completely upfront with the first application where the offer was withdrawn. Pre-interview, during interview, during OH interview etc. I agree that being a trouble maker is not a good look. Which is why after my managers (possibly unlawful) reaction to my absence, I said and did nothing and waited to decline contract renewal.

It is the norm in Education.

I'm not an HR expert regarding the terms of illness etc. I'm just parotting what my manager at the time said and asked me to do.