Employer - Breach of Settlement Agreement

[LAlexander7]

Hi,

My previous employer has provided a reference to my current employer which was not agreed in our settlement. We had Name, JT and Dates and a line about factual references.

I've looked at my background check in my current employer and I can see they've provided, salary, information about integrity, honesty etc and weaknesses/strengths and a note about rehiring, and reason for leaving.

I've passed the background check. and the reference provided was a positive one, it still wasn't what was agreed so it has come as a shock.

Q is, do I do anything with this or do I just leave it?

As they’ve given you a better reference than was agreed, I’d leave it if I were you.

I’d assume a mistake rather than deliberate - if you’re concerned about future references then I’d get in touch and remind them

@flowery

As they’ve given you a better reference than was agreed, I’d leave it if I were you.

Well the worst they can do is write the reference we agreed.

@HermioneWeasley

I’d assume a mistake rather than deliberate - if you’re concerned about future references then I’d get in touch and remind them

Deffo not a mistake, the don't particularly like following rules or laws.

I would be livid. They have provided unnecessary information they legally agreed not to, and the salary information in particular could have caused issues for you.

”Well the worst they can do is write the reference we agreed.”

Why would you want them to do that? If they are prepared to give a fuller, positive reference, that’s better, no?

If it’s the case that in future you will only need a reference from your current employer and not the previous one I would leave it as won’t be an issue again.

@LAlexander7 so, to your original question 'should I do anything or not'?

Why not ask yourself how would taking any action (contact them to complain? Get a solicitor involved?) change your life circumstances for the better? If you already know they don't follow rules and are a law unto themselves, surely you can tell they are just going to give you a bunch of platitudes, or say "oops sorry we didn't toe the line but what's your problem?" and then you'd be left floundering how to object to them giving you a better reference. That would, I'm afraid, look a bit dumb!

Sometimes in life, the answer is to consider the benefits of walking away, versus locking horns, if it saves you a world of pain. Pick your battles, focus on your new job and build a great reputation for yourself there, which will influence a future reference.

Just to add to the comments made by Daisychain, whilst you may be filled with righteous anger, stopping and considering the alternative is always worthwhile. This was a background check. So not your average reference. So in legal terms it is questionable whether they have breached the agreement - a reference and a background check are not the same thing. Did your agreement specify that they wouldn't answer background checks? That would be very unusual.

But more to the point, if they really, really wanted to damage you, then they wouldn't need to "break the rules". It would be easy to doo as toy want. Answer to question on integrity - we are unable to comment on Xs integrity. Answer to question on salary - we are unable to comment on salary. Do toy get my drift? By not answering they could very easily have got your background checked failed. And their defence would be that they followed the agreement and refused to answer any questions beyond the agreed reference!

You've already said that what they've said was positive, and that you passed the background check. I think you'll struggle to convince a court that they have done anything wrong, and they certainly haven't done got any damage. Tilting at windmills comes to mind.

Just to add to my earlier comment - I would be livid about it but I probably wouldn't bother doing anything about it at this stage, assuming that you will be in your new job for some time and you are absolutely sure that it hasn't hindered your prospects in any way.

Those posters saying you have been given a "better" reference are totally wrong. A factual reference was agreed legally and that is exactly what should have been provided.

How is disclosing information that the OP might not have wanted to provide to new employers "better"? The OP might not have disclosed that they left by mutual consent, or wanted their previous salary confirmed. Also stating what you perceive to be a person's "weaknesses" in what should be a factual reference is defamatory.

The legal position is that if you agree a reference as part of a settlement agreement you must not deviate from it. The only exception would be if you discovered evidence that would render the previously agreed reference incorrect, and this would still need to be discussed with the employee first. They are totally in the wrong here.

”Those posters saying you have been given a "better" reference are totally wrong....How is disclosing information that the OP might not have wanted to provide to new employers "better"?”

You can’t see how “positive” (in OP’s own words) comments about her integrity, honesty etc are a better reference than just confirming dates and job title?

Ok then. If I’m recruiting, I would definitely see that as being a better reference for a candidate.

If OP would prefer them not to do that again, she can of course insist they refrain from doing so in future. But being “livid” about a factual positive reference is dramatically over the top.

It's not a case of better or worse - the ex-employer has breached the agreed terms of a legally binding severance contract!

@Gemma2019

It's not a case of better or worse - the ex-employer has breached the agreed terms of a legally binding severance contract!

Sorry, I took at face value your stated view that people saying a positive reference is better were “wrong”. 🤷🏼‍♀️

Unless it has adversely affected you now, I would do 2 things: write a short but pleasant note reminding them that the reference they gave was a breach of their agreement. Secondly, if you ever need a reference from them again, write again to remind them of the agreement.

Then let it lie.

The remedy for a breach would be to put you in the position you would have been in had no breach occurred. You've incurred no loss, in fact a neutral reference may not have been sufficient to pass the checks.

Leave it alone. If you need a reference in future, contact them in advance to remind them of your agreement.

It's not a case of better or worse - the ex-employer has breached the agreed terms of a legally binding severance contract!

Exactly!

I wouldn't do anything. Imagine if your old employer agreed and sent another reference advising there was an error and resubmitted it with that part blank or stating they couldn't fill it in?

@Gemma2019

It's not a case of better or worse - the ex-employer has breached the agreed terms of a legally binding severance contract!

A legally binding severance agreement that nobody here has read! There is a difference between a reference and a background check. They are not the same thing. If an employer requires a background check then if the previous employer refuses to comply by providing information asked for, then the OP could very well have not passed the background check and not got the job. To be clear, for the work that some of my team do, we require both references and a background check. If I get a bland reference, then that is fine - that is the way some employers do references and it would not raise any flags. If the last employer refused to answer background check questions, then you don't get the job. It's that simple.

I could certainly understand the anger if the employer had refused to provide a background check that enabled them to get a job, but the level of anger being expressed here because they gave them a positive background check that enabled them to get a job is unbelievable.

We don't need to have read the severance agreement - I've read the OP's paragraph which states "I've passed the background check. and the reference provided was a positive one, it still wasn't what was agreed so it has come as a shock".

I haven't once mentioned background checks and am aware of the difference, although a lot of the information disclosed was certainly not part of standard background checks.

The point here is that the reference wasn't what was agreed so the employer breached the terms of the legal agreement. They had no right to disclose what they did. If the OP had breached the terms you can bet that the ex employer would come down on them like a ton of bricks.

”The point here is that the reference wasn't what was agreed so the employer breached the terms of the legal agreement. They had no right to disclose what they did. If the OP had breached the terms you can bet that the ex employer would come down on them like a ton of bricks.”

Unlikely, if the OP’s hypothetical “breach” put the employer in a more advantageous position than sticking strictly to the terms of the agreement would have done.

As has been made clear, if she would prefer them to give very basic details as set out in the settlement agreement, she is perfectly within her rights to insist on that.

But making a drama about her new employer having been given a positive reference for her would be a huge overreaction, and, if the positive comments given in the reference were relied upon by the new employer, could actually jeopardise her new job for the sake of making a point.

I would suggest leaving it for pragmatic reasons, and then when it gets to the point of applying for a new job in future, politely reminding the ex employer of the agreed reference so that future references are what was agreed.

@Moondust001

Just to add to the comments made by Daisychain, whilst you may be filled with righteous anger, stopping and considering the alternative is always worthwhile. This was a background check. So not your average reference. So in legal terms it is questionable whether they have breached the agreement - a reference and a background check are not the same thing. Did your agreement specify that they wouldn't answer background checks? That would be very unusual.

But more to the point, if they really, really wanted to damage you, then they wouldn't need to "break the rules". It would be easy to doo as toy want. Answer to question on integrity - we are unable to comment on Xs integrity. Answer to question on salary - we are unable to comment on salary. Do toy get my drift? By not answering they could very easily have got your background checked failed. And their defence would be that they followed the agreement and refused to answer any questions beyond the agreed reference!

You've already said that what they've said was positive, and that you passed the background check. I think you'll struggle to convince a court that they have done anything wrong, and they certainly haven't done got any damage. Tilting at windmills comes to mind.

A reference is part of a background check, along with credit/DBS etc

I work in HR as a Manager, and it's more common to receive a note saying the we can only confirm JT/Dates etc. As part of my role I am responsible for background checks, which is why I saw mine.

@Gemma2019

Just to add to my earlier comment - I would be livid about it but I probably wouldn't bother doing anything about it at this stage, assuming that you will be in your new job for some time and you are absolutely sure that it hasn't hindered your prospects in any way.

Those posters saying you have been given a "better" reference are totally wrong. A factual reference was agreed legally and that is exactly what should have been provided.

How is disclosing information that the OP might not have wanted to provide to new employers "better"? The OP might not have disclosed that they left by mutual consent, or wanted their previous salary confirmed. Also stating what you perceive to be a person's "weaknesses" in what should be a factual reference is defamatory.

The legal position is that if you agree a reference as part of a settlement agreement you must not deviate from it. The only exception would be if you discovered evidence that would render the previously agreed reference incorrect, and this would still need to be discussed with the employee first. They are totally in the wrong here.

While I was open about my reasons for leaving and my strengths and weaknesses in my interview it wasn't a problem.

I'm more concerned about the fact that if I have breached the agreement then they would come down hard on me.

What is to stop them doing an "off the record" telephone reference.

@BlueBirdGreenFence

I wouldn't do anything. Imagine if your old employer agreed and sent another reference advising there was an error and resubmitted it with that part blank or stating they couldn't fill it in?

They wouldn't do anything.

Background checks are more of a compliance thing, confirming the dates where you were rather than how you were.

So even if I said sorry they don't give references, I would just provide them with a P45/COE etc as I've asked candidates/employees for previously

”I'm more concerned about the fact that if I have breached the agreement then they would come down hard on me.”

Unless you plan to breach it why is that a concern?

”What is to stop them doing an "off the record" telephone reference.”

Nothing, other than the risk you might find out. But what would be in it for them? Why would they bother? It would also be very unlikely these days that a new employer would want a telephone reference.

By far the most likely scenario here is that they received a reference request form and completely forgot that in your case they are not supposed to say anything other than dates.

You have lost nothing, possibly gained.

If you’re worried about the same mistake happening again in future, remind them next time. Job done.

Drama unnecessary.