Job References

L_3107

Can your current employer be contacted for a reference if youre looking for another job?

If you get a bad reference, what can you do about it?

DublinWriter

As far as I know, they are legally obliged to provide you with a reference, but cannot say anything detremental about in it.

It's more about what is unsaid in the reference than said.

For example, if they just stated that you worked there during period X and little more, then that would be quite a bad reference. Normally they'll say that you got on well with others, were punctual, didn't smell of wee, etc.

As a contractor myself, I'm not legally entitled to references of any kind. Most big companies now run shy of providing contractors/consultants with references as they can be sued by the company they provided a reference for you to if you turn out to be a lemon with the second company.

hullaballoo

1. Yes they can, but if you don't want them to know you're leaving, it's not a good idea to use them as a reference.

2. If they give you a bad reference that is unfair, there are cases to suggest that you might be able to sue for negligent misstatement.

L_3107

If you had to put your current employer down on application form can they look for a reference without you knowing about it? are you entitled to know if a bad reference was given? how would you find out?

Miss Fluff

L_3107 wrote:

If you had to put your current employer down on application form can they look for a reference without you knowing about it? are you entitled to know if a bad reference was given? how would you find out?

I find it inconceivable that a potential employer could go seeking a reference from your CURRENT employer without your prior consent. If you merely put your current company down on an application form by way of a resume, they cannot just go ahead and contact them. This would be putting you in a really awkward position. Always put "references available upon request" on your resume.

No such thing as a bad reference. As someone pointed out, a bad reference is more about what is left unsaid. A previous employer can not go slating you to a potential employer, they can merely "decline to comment".

L_3107

Is it illegal for whoever to contact your current employer before you do an interview?

Devon

From a legal friend:

When Irish people ask for a reference, they're really asking for a testimonial. A reference is supposed to be completely 100% objective and state just facts, for example:

John Smith worked here in Company ABC from 01-01-2003 to 01-01-2005 as a sales agent. His duties were blah blah blah...

References are not supposed to include information on timekeeping, attendance, attitude, manner, personality etc. in any way. Anything subjective like this goes in a testimonial and the 2 have separate and distinct legal identities.

More and more companies these days are just giving references and leaving out subjective information for fear of being challenged (sued).

If anyone here is from the USA perhaps you can attest?

Victor

L_3107 wrote:

Is it illegal for whoever to contact your current employer before you do an interview?

I don't think its illegal, but it would be both rude and stupid. Would you want to work for someone like that?

padser

Victor wrote:

I don't think its illegal, but it would be both rude and stupid. Would you want to work for someone like that?

It may however be a breach of your privacy rights ESP from the point of view of your current company divulging information about you without your consent.

The last job/internship that i applied had a form and i had to click a box saying they could 'take up the references now'. I assume one of the function was to have express consent that
a) they could contact people and request information on me
b) the people they contacted could divulge information about me

Imstandingup

hullaballoo wrote:

2. If they give you a bad reference that is unfair, there are cases to suggest that you might be able to sue for negligent misstatement.

Surely you mean defamation? A re-read of Hedley Byrne v Heller for you young man.

maidhc

padser wrote:

It may however be a breach of your privacy rights ESP from the point of view of your current company divulging information about you without your consent.

There is actually a case study by the Data Protection Commissioner confirming this to be the case. A professional requested his referee not to be contacted until x happened, the company did not oblige and were found to be in breach.

Sangre

They can give a bad reference but they have to make sure 100% that its completely, factually correct and they're going to need evidence to show this e.g. personal file, time sheets etc.,

Most companies won't give a bad ref to save hassle.

Edit: its not defamation as the statement wasn't made in public.

dermot_sheehan

Sangre wrote:

Edit: its not defamation as the statement wasn't made in public.

It was however to a third part which is all that is required for a defamation action. Defence of qualified privilege would probably apply however, which would require the defendents to have acted maliciously for an action to succeed.

hullaballoo

Imstandingup wrote:

Surely you mean defamation? A re-read of Hedley Byrne v Heller for you young man.

Haha, yore banned.

lol, j/k.


...Oh wait....

Thirdfox

Qualified privilege: do your current employers have a moral/ethical/legal duty to publish the information?

And malice only requires that the information given is knowingly false or person was reckless to the truth. So an unfair reference could be argued as someone reckless to whether what they were writing was true or not.

*edit* what ghastly txt spk Hullaballoo! By the way is Hedley Byrne v Heller a key Irish defamation case? I didn't seem to have come across it before...

hullaballoo

Hedley Byrne established the Hedley Byrne principle. It's fairly major in tort, but I don't think it's just defamation.

Thirdfox

Ahh, okay... found this on the net (for anyone else who might be interested in the principle) - website: "http://oxcheps.new.ox.ac.uk/casebook/studenttort2.html"

Hedley Byrne v Heller 1964 [View]

- This is another seminal tort case and has had a huge influence over the scope of the duty of care in the tort of negligence, with regard to the important category of claims in which pure economic loss is the loss complained of. Pure economic loss is monetary loss which is not consequent upon any damage to property or the person; hence, money expended repairing a car damaged in an accident will not constitute pure economic loss since it is consequent upon the car having been physically damaged. On the other hand, allegations that negligent teaching had resulted in detriment to a student’s future earning capacity would constitute a claim for pure economic loss, since it is a loss in isolation from any physical injury to the student.

padser

hullaballoo wrote:

Hedley Byrne established the Hedley Byrne principle.

Love it

NUTLEY BOY

NALO [Not A Legal Opinion] !

Hedley Byrne was a case of negligence through the medium of a negligently prepared reference as far as I recall.

I think that the subject matter of the reference was about the creditworthiness of a company with whom the querist was going to trade. The institution which prepared the reference did so negligently. The other party acted in reliance upon it to their detriment.

As far as I recall this case was actually lost by the plaintiffs because the reference contained a disclaimer that it was prepared and issued without responsibility. Otherwise, the defendants would have been liable. Anyway, the principle was establised by this case.

Transposing the Hedley rationale to OP's query suggests that if the employer gives a negligent reference which is detrimental to the recipient (i.e. new employer) there is a stateable case made out for a negligence action as there is a clear duty of care.

As far as defamation goes a reference could be defamatory in character if it satisfies the usual tests applied to allegedly defamatory statements. IMHO if employers are stupid enough to supply defamatory references they deserve what they get.

I do not know if there is a legal requirement on an employer to provide a reference. If so, what is the legal authority for it ?