Secret E-Mails / Bullying and Harrassment.

[JamesTheCat]

Hello

Could anybody give me some advice please? I know that I'm going to sound a bit 'confused' here to say the least.

I work in an HR department and have been, I believe, bullied and harrassed for about 7 months now. However, the way it is done is so subtle that I only have my account of things that happen (I have been keeping a diary to help me). There is never any evidence to suggest the bullying takes place. This is because the three key 'bullies' are HR experts and know what can be taken further and what can't. I was signed away from work with Stress at Work for 5 months and only returned about a month ago. I used my time away to look for new employment and now, luckily have a new job. I say luckily as I have been close to the edge a few times to say the least.

My new job doesn't start until May and means me having to move from one end of the country to the other. I told my department that I had been offered a new job, as I knew that they would be calling for references and since then, things have only got 10000 times worse.

Anyway, today, I found out by chance that I have access to one of the lady's e-mail accounts. I found several e-mails about me that were not particularly savoury and have taken the opportunity to print them off without anybody else knowing. I have them here with me and I am wondering if I can use them to take any further action?

I know this is a bit underhand. My union said that I shouldn't have been snooping, but after 7 months of quite frankly, hell, I wondered if I can use these e-mails as evidence?

Where do I turn when the HR Dept are the people I have an issue with?

I am also very frightened that they are going to give me a bad reference and that I will be stuck there forever. Due to the amount of stress I have been under, I have made some typos/ errors in my work recently
and have now bwwn told that I will be put on a procedure.

This is a complicated and long drawn out saga, so I have spared most of the details.

Thank you for reading.

What was I saying about typos??! bwwn = been - sorry

Hello - sorry - probably not the best person to respond first but just wanted to say that as far as I know employers can't give a bad reference. I suppose that damning with faint praise might be an issue but they aren't allowed to write anything negative.

Does HR have to give the reference? Could it be someone else in your organisation?

Well, if you were to bring a tribunal claim you could use it as evidence (probably). We don't have the same sort of rules on inadmissable evidence that they do in the US, etc. It might not reflect that well on you to have been snooping though (sorry).

However, I suggest that you focus on your main objective- getting out of there and into a positive new job.

What have you told your new job about your reasons for leaving the current one? This may affect your approach.In terms of references, I am afraid (as you probably know) that you can give a bad reference. The idea that you can't is a bit of an urban myth. It's just that you have to be able to back it up and, since many companies are a bit poor on keeping data, etc, they often don't want to risk it. Bear in mind that, if your new employer asks about sickness, your long bout of absence may well come up, so you might want to seriously consider whether you want to tackle the issues head on with your new employer so that they understand that there isn't likely to be an ongoing issue (assuming that that's the case). It's your call really on that bit.

What about your current company. Is there anyone you get on with - say in management or a head of department? You could ask him/her to give you a additional reference to balance out anything your manager might say?

If you do want to follow this up internally (and possibly get the result that your manager doesn't deal with reference requests), then you could submit a grievance. Put it in to someone on the management side. Who does the head of HR report in to? You don't say who sent the email. Is there any evidence in the email implicating your manager?

Two things occur to me. Firstly if the email is about you, if you put in a subject access request under the Data Protection Act, it ought to be disclosed.

Of course, it's fairly likely they would not disclose it, so you'd have to point out that you already knew it existed.

The other point is that it may not be much use to you as evidence anyway, depending on what it says. If it's just giving a negative opinion of you, well that's allowed. Someone is allowed their opinion and if it's not been communicated with you, it's not really much in terms of evidence of bullying.

If it's discussing what to do to you, that might be different.

As Ribena says, it's perfectly possible to give a bad reference as long as what they are saying can be substantiated. If they have raised performance issues with you, documented them and you have been put on a procedure, then that would be enough to be able to mention it in a reference imo. They are also likely to mention your sickness absence record, although can't disclose the reason for your absence without your consent, as that counts as 'sensitive data'.

Have the new employer asked for references yet? Could you perhaps give someone else internally as a second reference? I've done that before, not because my reference from my manager at the time was going to be bad at all, but because I needed two and I felt one from a recent senior internal client would be more useful than a basic one from a previous employer.

Have you discussed your absence with your new employer, do they have a medical questionnaire or anything as part of their pre-employment checks?

Ooops - sorry about the reference misinformation!

I was going to suggest the Data Subject Access Request but see flowery already has

It might cost you £10 but it will also give you everything they have on file for you which might give you a better idea about the reference.

Is you line manager party to the bullying? Have you spoken to them?

Were you referred to occupational health when you were off for 5 months with work-related stress? (Was it actually recorded as work-related stress?)

The Subject Access Request is a good idea, but bear in mind that, if it did come to litigation YOU would have to disclose this email too. BOTH parties have to disclose everything they have, so if you didn't let on that you had this email and they somehow found out, you would be in trouble with the court. Sorry.

Also, the DPA has a specific exemption for references provided by a current employer, so I'm afraid that wouldn't help you. You could probably get it from the new employer though.

Sorry. I'm all doom and gloom tonight!

Would personal e-mails really have to be disclosed under a DPA request?

Absolutely. Anything with the person's name in has to be disclosed.

Some information can be blanked out, such as people's names if they don't give their permission for them to be disclosed in DSARs generally but for the most part it's full disclosure.

Every so often there's a story in the press about people who've done a DSAR at their bank/council and are outraged at what they've found. Where I work one woman had "sounds like a man" on her file. They had to get her permission to put it on there first just in case she did a DSAR although there was no reason to think she would.

An employer does not have a common law duty to provide references unless this is specified in your contract. However, it is rare for an employer to refuse - partly because it is established practice to provide a reference and a refusal could result in adverse consequences for the employee; there may be no legal obligation to provide a reference but there is a moral one - and there is legal precedent to back this up.

An employer will be liable if loss results from their failure to exercise reasonable care in the preparation of a reference. The reference must not give an unfair or misleading impression overall, even if it is factually correct. If a reference contains a false or unsubstantiated statement that is to the detriment of a former employee, he or she may be able to claim damages for defamation. The ex-employer would have to prove that the reference is correct and given without malice.

Some years ago I had to dismiss an employee for continuous poor performance (after fully following our disciplinary procedure) and for several months afterwards I received reference requests while she sought a new post. However, after first checking this out, I did include the reasons why she had been dismissed - had I given her 'glowing' references then this would have also been considered dishonest.

So yes, an employer can give a 'bad' reference provided the facts are correct, honest and can be substantiated. As stated earlier in this thread, if they include issues about your performance - they should have discussed these with you, allowed you to explain and recorded the outcome. If they include detrimental information about you which you deny and you were never given the opportunity to challenge, then they are on dodgy ground...as an HR department they should be well aware of this.

Frankly, I am surprised they have threatened to "put you on a procedure" when you have informed them you are leaving anyway. To do so simply because of this then would strike me as victimisation...so if they have got issues with you why don't they negotiate with you an earlier termination date? I suggest, as you have secured a position elsewhere, that unless things get really bad (so, raise a grievance if it does) that you don't rock the boat, keep quiet about the unsavoury emails (unless it really blows up and you can ask for disclosure), keep your head down and count the days towards your new employment in May.

Lastly, if your new employer is informed about the extent of your recent sick leave and wants to know more, remember they are not entitled to your medical details. They are only entitled to know if you whether you are fit enough to perform your duties - assessing this can be done confidentially though a qualified Occupational Health advisor or organisation.

Good luck
Wizzie

How large is your potential new employer James? Wizzie is right that this would normally go through occ health in a large organisation (very small employers might handle it internally though, and it might be perfectly reasonable for them to do this).