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hi all,



sorry i have not been around much, it's been mad. but i really need to pick your brains.


I have recently done a reference for a member of staff at my nursery who is leaving. the reference asked me if i would re-employ and i answered honestly 'no' (there have been a string on issues that this staff member has been spoken to about but has never had to lead to disciplinarary action, however i still would not re-employ her due to her not being committed and her attiude to senior staff. i put all this on her reference. i also put her good points too and answered all the questions, i felt the balance was right and it was an honest reference. the nursery owner checked it and we both stood by our decision not to re-employ.

sadly this staff members new job offer has been retracted based on an unsatisfactory reference, she has been told it was us that gave her the unsatisfactory reference, she now has no job to go too and has given her notice with us. understandibly she is a bot narked and a family member of her's is threatining legal action because we apparently gace her a bad reference (but we didn't it was just honest)... we have spoken with the company that have retracted the job offer and they say there is nothing they can do and will more than liklely be sticking to the retraction.


we have been told that we don't have to show her the reference we sent, is this correct?, and we do have evidence to back everything up that is on the reference but really we don't want a fight..... any ideas where this will go. her family member is saying that we will blight her future career because of this reference ( i feel so bad, but felt i needed to be honest for many reaosns, but also because her new role involved working with special needs children)... her family member is taking the angle that myself and this person never hit it off since i became manager and that i might have been malicious and unreasonable, which is not true at all.


does anyone know the legal ramifications of this?





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I can't help, I have no legal knowledge........... I just wanted to acknowledge your post and say how awful for you.


It sounds like a terrible situation to be in.


I think you have to keep your chin up.

As long as you know you told the truth what can anyone do?


Can you consult your union?


Do you have a recruitment policy? Disciplinary policy?

What does it say?


I think most employer's have an open file policy so that you can see a reference written about you.


Have you been on recruitment and selection training......... and disciplinary training? If so can you say you used these to guide you?


So sorry I can't help. Take care.


Keep us posted.

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Just wanted to wish you luck and say i know how you feel... i recently did a reference and was asked the same question.. would you re-employ this person... i answered honestly and said No.. they didn't get the job.... it puts you in an awful situation and can understand how you feel..... are you a pre-school, if so maybe you can get advise from lawcall.....


Good Luck... keep smiling :o I'll be thinking of you....

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hmm try looking at the ACAS site, there might be answers there,or if you are a member of the PSLA, call their legal line for good free advice. but I always understood that you can't give a really bad reference, for exactly the reasons this lady's family are citing. I know exactly what you meant by being honest and I would support your reasons for doing so, but it's probably better to give bald facts, such as X had twenty days off sick in the last six months, was usually punctual (they can read into this that sometimes she wasn't on time, ect), and then tell them that they can contact you by telephone for more information.......when you might be able to be more frank?

ok, just looked on the ACAS site and this is some of what they have to say on the subject, it's the last paragraph which really covers your situation:


References and checking

State on the application form when any references will be sought, and do not approach a current employer unless the candidate has given express permission. If references are sought, they will be most effective if you include a job description with the request, with structured, relevant questions that will enable you to gain accurate further information about the candidate's abilities. Do not ask for personal information or for conjecture about the applicant. Remember too that completing a reference takes time and proper consideration, so only seek such references if you believe they are necessary and appropriate. A simple form confirming dates of employment, capacity and particular skills may be satisfactory.


The holding of particular qualifications, training or licences may be important to the job, and it is reasonable to ask candidates for proof. If checks on such qualifications are to be made, it is good employment practice to make sure the applicant knows, and that copies of any relevant documents will be held on their personnel file.


The timing of reference and qualification checks is variable. It is often the case that references are taken up at shortlist or offer stage, and the candidate may be asked to bring documentary evidence of qualifications to the interview. Job offers are sometimes made 'subject to satisfactory references being received', but this is not advisable. The referee may simply fail to provide any kind of reference. There is no legal requirement to do so. Or a referee may wrongly indicate the applicant is unsuitable, in which case if the offer is withdrawn on those grounds, the organisation could face legal action by the applicant. The organisation needs a policy of what to do in circumstances such as the non-supply of a reference - an initial 'probationary' period might be an acceptable way of proceeding

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Oh I do sympathise I get asked to do references all the time. I have just refused to do one on the grounds that I haven't seen this person in 3 years have no idea what they have been doing so can't give a reference. I did speak to the people on the phone and say that when I knew her she was nice good time keeper etc.

I have refused to do a couple of references in the last few months because not only are they time consuming they are a pain to do.


I don't mind if it is some one who asks and it is recent but 3/4 years later when you haven't seen or if the person left because they were disciplined I draw the line at.

If nothing else you might learn from it to actually document any issues that you had with a member of staff. You say she is leaving, why? is it because she is no good at her job then if so what did she expect a glowing reference!!!!!


I would maybe try and have a word with her about her conduct and the reasons why you said what you did. is she still working for you?


Good luck hope you can make her see the reasons why you wrote what you did.

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These references are a time bomb!!! She would in my opinion have the right to see the reference you gave. You really need legal advice. Try your insurance company or NDNA if member. I think you did the right thing as long as it is not personal.

I tend not to fill in that part of a reference and the other employer can draw their own conclusions. I never give a telephone reference unless it was extremely positive.

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It's so hard isn't it - I have a rule that I will not do references unless

1) the person has asked me before hand if I mind doing a reference (I consider that to be professional bad manners otherwise)

2)I have had work contact in the past 2 years with them.


OK, that's 2 rules. They have worked for me though and I have refused to write one rather than have to lie badly as there was NOTHING nice I could say about one person who stuck my name down for a supply agency!! Why she did I'll never know as she hated me! She must have been desperate


But the big question is that one about re-employment. If you say NO, how would the next employer take it? That there may have been specific issues in the particular setting, but they are a good employee elsewhere or that this person is not a good employee? I always struggled with that one and it is the one your conscience niggles at.


I hope your situation works out and that you get some good support in this.


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Having just lost half my staff to redundancy I have spent so much time writing references that i really feel for you.

As I wrote each reference I had each member of staffs job description beside me and gave a brief description of their duties and how they performed them. There was a 'myth' that you couldn't write a 'bad' reference, but actually you can't write a misleading reference, for example if you say someone is an excellent time keeper then in their new job they are always late their new employer might come back to you and ask about their time keeping and ask to see their time sheets if they were always late you could be accused of giving a misleading reference.

I made a point of showing each member of staff the reference I had written for them, obviously the circumstances were different to yours and for the most part all the references I wrote were positive, sometimes what is missing from a reference can be just as telling as what is actually written.

It is possible to write into your staffing / employment policy what you will or will not put into a reference, we have it in our policy that we will not give telephone or verbal references, as these cannot be verified and it cannot be proved that something was or was not said.


I think for your own peace of mind you should seek advice as others have advised, ensure you have any documentation to back up your reference and remember you were asked a subjective question, would YOU re-employ this staff member, which YOU answered honestly, if she decides to take it further then you may have no choice but to fight, she may decide not to but it is better to be prepared

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Hi Dawn, Nice to see you back and sorry to hear you've been so busy and have this dilemma.


Useful info from Narnia, especially as she say's the last paragraph


"Or a referee may wrongly indicate the applicant is unsuitable, in which case if the offer is withdrawn on those grounds, the organisation could face legal action by the applicant. The organisation needs a policy of what to do in circumstances such as the non-supply of a reference - an initial 'probationary' period might be an acceptable way of proceeding"


I read this as the setting that has retracted the job offer could be liable to legal action from the applicant, and not your setting.


As you say you stated facts, you have records to show when she was spoken to by management on issues and you were honest.

From what you say I can see that the only assumption you made was in her ability to work with children with special needs (unless you have evidence of her ability with this at your own setting).


She was obviously looking to give her notice (otherwise she wouldn't have been applying for other jobs). How would you feel if you'd given a glowing reference?

I think the company who retracted the job offer should have had a meeting with her to hear her response to your reference, that's what I would have done. They obviously thought she was suitable to offer the job, on the information you gave I would still have offered the job but with the clear understanding that the issues mentioned in the reference would be assessed during a 'probationary period'.

In a sense they are undermining their original reasons and decision to offer her the job, based purely on the information you have given, I don't think they have given the applicant due consideration to address your comments.


Not sure of legal implications but I personally feel that all employers should be able to give true, honest, factual references without fear of persecution, otherwise what is the point of having them?

I do think that under the freedom of information act, the reference you wrote should be available to the employee, but don'tquote me on that, I'm not sure. ( mind you I would never write anything on a reference that I couldn't say to that persons face-if you know what I mean)


As far as this persons family members are concerned I would write them a letter stating that to maintain confidentiality you are not prepared to discuss or engage in any communication about this matter with them. It is between you and the employee.


Good luck with it all I hope it gets resolved soon and you can move on from this.



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I'm afraid that the person you wrote the reference about has every right to see it. However, legal action can only be taken if there are grounds for it. You say that everything you wrote was the truth and you have evidence to back up your statements so you shouldn't have anything to worry about.


It will indeed make it very difficult for her to get another job - most potential employers want a reference from their most recent employer and obviously would think twice about employing someone who has had employment issues in the past. However, unfortunately this is their problem and not yours. If they felt they had been unfairly dealt with at the time of their employment with you then they should have raised these issues at the time.

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If they felt they had been unfairly dealt with at the time of their employment with you then they should have raised these issues at the time.

This is true, but another aspect may be the measures you have been taking to help this employee improve her practice - if this does come to court you may be asked to provide notes of disciplinary or other meetings. She may be trying to claim that she was unaware of the circumstances that led you to provide the reference you did and applied for the job in good faith.


As others have said you probably need proper legal advice.


Good luck!



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