Are my old employers allowed to give this flaky reference?

[recipw]

It seems a bit unfair.

My potential new employer has requested a reference from my old workplace.I left there in June.

They have come back with 'x was employed here from this date to this date, however, can't comment on performance much as off on maternity related sick and maternity leave for a long duration'

Is there anything I can do about this?

Thank you

OP the best advice is to contact them. Say that you feel that the way they have written the reference could be used by a new employer to discriminate against you and would they mind changing it please to remove the reference to maternity and pregnancy. Whilst they don’t have to, you’ll probably find they will.

Jesus harsh.

If they knew why you were off and then what happened to your baby it's pretty harsh of them - sounds like you are much better off being out of there

I highly doubt they can do this. Whilst they are allowed to give a factually correct reference, I don't believe they are allowed to share your sensitive medical information unless you've given permission for that to be included.

I am very sorry to hear that, and it also makes what they said in the reference so much worse. 💐

They haven’t given out medical information, they have given out some attendance information and to be honest maternity related absence is better than an unexplained absence. I personally wouldn’t have given out any absence information, but that is my choice and the company haven’t done anything wrong.

LIke a lot of the other advice on here, this is wrong. They DIDN'T comment on performance - they specifically said they couldn't and gave the reason why. ANd there is absolutely no reason anyway whey they shouldn't comment on performance - we are asked to and do all the time. Nor is there any reason at all why they cannot comment on the reason for absence. The law is that a potential employer may not ask about sickness absences (for any cause) until an offer has been made. There is nothing to stop a former employer commenting, whether asked or not.

An employer must give a reference that is factually correct (which the OP has confirmed that they have), must not mislead (there is nothing in that that is misleading), and if they express an opinion it should be clear that it is opinion (opinions are best avoided but there is nothing unlawful per se about giving opinions). There is nothing to indicate the reference falls short of any of the legal requirements.

That said, and this is my opinion, that is a lesson in writing a reference for someone that you don't like and don't want to give a good reference for. It meets the legal criteria but if I got that it would give me pause for thought. It may be that someone had a very short term employment and just happened to be off for a lot of it - the reason would be irrelevant to me, but I would want to discuss it further before confirming the offer. Or it could be that this was a "coded" warning that the person was unreliable and performed poorly. Again, the reason would be irrelevant, but the possibility would be something I would want to explore. I would not have written it in that way myself, but if I couldn't comment on performance then I would certainly say that I couldn't and give some explanation for that.

OP, I think you either need a different reference, or if not possible perhaps you could explain the circumstances a bit more and people could suggest ways to "head off" this comment having an adverse impact on you?

Sorry I just realised that I must have missed your update. Under the circumstances, if there is no better reference for you, I would disclose on offer that you had some absence due to losing a child but you would prefer not to speak about it further. If someone did just that it would be the end of the matter. There may be improvements on how it can be explained if you can explain the performance bit - did you not work there for very long or something?

I am so sorry OP that you are going through this.

I must say I think your former employers are absolute dickheads for writing this reference focusing on your maternity leave and knowing full well that you lost your baby.

Any half-decent employer would have just written something very basic: that you worked between such and such period in such role and that there were no disciplinary matters and left it at that.

I can't believe the number of people who think what they did is OK...

They focused on your maternity leave which I find dodgy and it is likely that now you will have to also disclose your loss as well to your potential employer to explain what happened to you.

I would have a chat with ACAS and I would also send your former employer a letter to raise your concerns that they are purposely sabotaging your chance of finding new employment, disclosing your medical information and also causing you mental distress by forcing to talk about the loss of your baby.

Yes this is what I wasn't sure if they were allowed to do.

Sorry for your loss

Honestly I wish the arm charge lawyers on here would stop giving the op advice when it's not their area of expertise
A number of people ( who claim to be HR professionals )have advised the op . I know you can't prevent it but it's not helpful for randomers to spit out legal advice as is it was true.

I will be contact ACAS today. Thank you for that recommendation

Obviously I have no legal expertise but I boneslrh thought they couldn't disclose my pregnancy and maternity leave - as that's a protected characteristic I thought,, and stating it on my reference disclosed person medical information, and pregnancy related absence should be disregarded?

Anyway, I will contact ACAS and also contact the manager who wrote this reference. I am hoping she will agree to change it to a purely factual reference but it seems the damage has been done as I've got onto Trac jobs this morning and it says under my application 'Offer withdrawn'

I am gutted. I work for the NHS and thought they'd be more supportive

I can't believe the number of people who think what they did is OK...

I don't believe anyone said it is OK. A lot of people have said it is legal, which is a very different matter.

Maternity related absence cannot be used for sickness absence monitoring procedures - that is what the law actually says. But there is nothing in law that says that it cannot be disclosed. These are apples and oranges. What is legal, and what might be "fair" or "decent" are not the same things. NHS (like my own employers) do ask for references to include comments about performance. At least, all the ones that I have seen do. So if I got a reference that said "I cannot comment on performance" without any explanation (or even worse, "I cannot comment on performance due to thenm not being in work for lengthy periods), our HR would almost certainly advise us to withdraw the offer. Based on the wording given here we almost certainly wouldn't unless there was a further red flag, which is why we would want to discuss it.

They can say that if it’s truthful, yes (they can say what they like if it’s truthful). It’s not discrimination for your old employer to say that because it’s just a fact. It may be discrimination for your new employer not to hire you on that basis.

Sorry for your loss. Pregnancy isn’t a protected characteristic and there is no rule that they can’t disclose a protected characteristic (sex is one for example but it would generally be obvious from a reference). the prohibition is discrimination on the basis of a protected characteristic.

hope you get it sorted op

OP I don’t know if it’s legal or not… but blimey they are arse holes aren’t they! I’m so sorry for your loss 💐

It seems a fair description of the situation.

If they didn't mention the absence, it would seem like you did have a year etc experience of doing y. But you didn't it seems, sadly, so they would be lying if it wasn't mentioned.

I imagine they thought it best to also explain there was a good reason why as well to show you are not flakey.

In total how long did you work there and how long not working? That would show a bit how Fair it is.

Pregnancy is absolutely a protected characteristic.

www.legislation.gov.uk/ukpga/2010/15/section/4

I don't have a baby from it. She died. So again, I didn't want this disclosed

bloody hell, OP I'm so sorry. Glad to see you're going to contact ACAS. What your previous employer wrote is absolutely appalling in your case (in other cases maybe not so much)

I am sorry for your loss

Can you follow up why offer was withdrawn

As above, nobody has said it is ok and in particular in view of the loss the reference wording does appear particularly insensitive (note that quite a lot of responses were before this was known on the thread). But OP has asked whether it is allowed and presumably that means in a legal sense and the answer is yes it is allowed.

It sounds like comments on performance are normal within the NHS, so I think a response such as “cannot comment on performance due to a high level of absenteeism” is far worse than saying it was maternity related leave. In fact I cannot fathom why a job offer would be rescinded because of past maternity leave and would actually ask them what was the reason for that.

Of course they've given out medical information. They've said she was on maternity leave and maternity related sick leave.

No, the reason most firms give only the basics is it’s less effort and reduces the chances of a bad employee causing more hassle.

As others have said, if the OP gave permission for the new firm to request one then the old firm can say anything as long as it is true and not misleading.

Why though? No-one has done anything wrong here.

Old employer has just given factual reference. I see nothing wrong with that. New potential employer who has withdrawn job offer on the other hand..... i think you should explore that as I suspect that is discriminatory particularly as it refers to you being absent as a result of maternity related sickness.