Reference checks

Mm0R

I recently applied for a job and was offered a position after the interview, pending a pre employment medical being passed & references checking out. I provided my references, one written from my last employer and one phone number for my boss in the job I held before that.
I have just found out that the HR manager who was checking the references contacted someone else at my last job, not nominated by me and got a reference from them. She will not tell me who she talked to. My last employer was a well known German discount grocery store where I worked in a management position. After a number of years there I became extremely ill and was unable to return to work. I signed a compromise agreement to terminate my employment with the company . Part of this agreement was a non-disparagement clause. I have kept my side of the bargain and put my employment there firmly in the past but now it seems someone there, obviously off the record, has given me a bad reference and therefore breaking the terms of our compromise agreement.

Is it legal for my references to be bypassed in favour of this HR lady finding her own reference?

Jim2007

Mm0R wrote: »

I recently applied for a job and was offered a position after the interview, pending a pre employment medical being passed & references checking out. I provided my references, one written from my last employer and one phone number for my boss in the job I held before that.
I have just found out that the HR manager who was checking the references contacted someone else at my last job, not nominated by me and got a reference from them. She will not tell me who she talked to. My last employer was a well known German discount grocery store where I worked in a management position. After a number of years there I became extremely ill and was unable to return to work. I signed a compromise agreement to terminate my employment with the company . Part of this agreement was a non-disparagement clause. I have kept my side of the bargain and put my employment there firmly in the past but now it seems someone there, obviously off the record, has given me a bad reference and therefore breaking the terms of our compromise agreement.

Is it legal for my references to be bypassed in favour of this HR lady finding her own reference?

I'm not sure that you can do much about the situation... Does this German company have a policy stating that staff are not allowed to give a reference for a former employee or are they mute on the subject? Perhaps you can at least fire a warning shot so that they can try to make sure it will not happen again.

But when a manager is recommending that the company should hire someone it is a decision that will reflect on them and they will try to do as much research as possible on you. So you have to assume that if they know someone in your past that they will make the call and in most cases you will not know about it.

Mm0R

Thanks for getting back to me Jim! I know I probably don't have a leg to stand on with the company that withdrew the job offer and was really only wondering if my references can be bypassed in search of her own.

Myself and the German company have a settlement agreement. In it the company agrees to "furnish a reference in the form agreed(written) by the company and the employee following the execution of the agreement within 5 working days of the termination date and to answer enquiries both internally and from prospective employers, in a manner consistent with the said reference during and after the employment". The written reference is a very good one as there was never an issue with my work while employed there. The problem arose when I got sick, they tried to turn the screw to get me to leave but at the end of the day I stood my ground, and as they were completely wrong in numerous areas of employment law and I had all my ducks in a row, the paid me off. As a result the had to implement a number of things that would mean they had to employ more staff to cover the amount of hours we were working, make sure we were clocking in as we hadn't been and never worked a week less than 60 hours. It cost them and this is their payback now, years later!

Cloudio9

They're in breach of the non disparagement. It doesn't matter who gave the reference, the company is responsive and in breach of the compromise agreement. You could be due another pay off if you're prepared to pursue it.

Jim2007

Cloudio9 wrote: »

They're in breach of the non disparagement. It doesn't matter who gave the reference, the company is responsive and in breach of the compromise agreement. You could be due another pay off if you're prepared to pursue it.

And mean while in the real world some unknown person who was not a party to the non disclosure agreement said something, we don't know what.... good luck in getting that to survive even five minutes in court!

dar100

Jim2007 wrote: »

And mean while in the real world some unknown person who was not a party to the non disclosure agreement said something, we don't know what.... good luck in getting that to survive even five minutes in court!

The onus is on the company to abide by the agreement, and make sure reference is only giving out by individuals in a position to do so. I suspect they got talking to the right person and are refusing to say who it was due to a gentlemans agreement, if op was working in management position for said retailer you can be sure it was hr that gave the information over

Jim2007

Mm0R wrote: »

It cost them and this is their payback now, years later!

Unlikely I would say as to do so would mean they have to deliberately tell staff to provide you with a bad reference and since you may still know people there that would simply be a dump move.

I once did work some where, where we were instructed not to respond to queries and that sounded just as bad: I'm sorry I have been instructed to refer you to HR.....

For the future, I think giving your most recent employer as a written reference and an earlier one as a verbal is a bit of a red flag. Normally it is the other way around unless you are still currently employed there.

There is really no way to lock this down, but for starters I'd suggest in future submit both as written references. Then if asked, give the second as a verbal reference and explain that you have lost contact with people in the first company but will follow it up and get back to them. With a bit of luck if the second is a glowing one it might stop there.

Alternatively is there someone who worked with you there who would be willing to give you a verbal reference. You could give them instead. And perhaps that would be enough to stop further digging.

Perhaps you could approach the company, explain what happened and see if they can provide you with the name of someone you can give in future.

Jim2007

dar100 wrote: »

The onus is on the company to abide by the agreement, and make sure reference is only giving out by individuals in a position to do so. I suspect they got talking to the right person and are refusing to say who it was due to a gentlemans agreement, if op was working in management position for said retailer you can be sure it was hr that gave the information over

And who are you going to name in this law suit and how are you going to show they were aware of the NDA, but still colluded with the company...

It is a total none starter but I'm sure some solicitor will be happy to take the OP's money.

whatnext

Jim2007 wrote: »

And who are you going to name in this law suit and how are you going to show they were aware of the NDA, but still colluded with the company...

It is a total none starter but I'm sure some solicitor will be happy to take the OP's money.

I'm no expert by any means but I would suggest the retailer would be named in any case? A company has a legal identity. A representative of the company made the agreement therefore the company is aware of it.

dar100

Jim2007 wrote: »

And who are you going to name in this law suit and how are you going to show they were aware of the NDA, but still colluded with the company...

It is a total none starter but I'm sure some solicitor will be happy to take the OP's money.

I've just told you who will be named, the company will be named as it has a legal obligation and is a legal entity!

Lets say for example an employee made a legislative or compliance blunder, it will be the company that takes the hit, same issue here. Also the company that sought out the reference will be obliged to hand over the name of the person if summonsed to court

In addition the contract is with the company not an individual

Mm0R

Cheers for all the information folks! I have a lot to think about regarding this because if this is going to happen every time someone checks my references, I'll never find gainful employment again.

I have since found out that the HR manager who checked my references has confirmed to both the general manager & the person who has since got the job I was offered that my references didn't check out. 100% she did not check one of the references so the only place she could have gone is to the German company. From there it surely wouldn't matter who she asked, once they work there, the company are surely responsible for their actions.

Could anyone advise if this is something I should consult a solicitor over? All I'm really interested in is that this does not happen again, although they have cost me a job that I badly need and also there must be defamation/slander questions to answer.

JeffKenna

Do most people in the store know that you left on bad terms? If so, then it sounds like general knowledge/gossip which is something you can't really control.

davo10

It would seem that in order to take legal action, you would have to show that your new employer got a bad reference and that reference was the reason you did not get the job, did they tell you directly that you go a bad reference? If they didn't, as sure as god made small apples, they will not support your viewpoint in any claim against your previous employer, they will just say that a more qualified person was offered the job.

Written references are literally not worth the paper they are written on.

Mm0R

What I was told was that they had reevaluated the position are were at this time not going to fill it. She then under questioning said that they would not fill it externally so is obviously covering herself with this. The guy who has since started the job was already working there, had interviewed for the position and was not successful. I was offered the job last Wednesday pending medical and references. On Thursday I was in contact with HR and had an appointment set up for the medical which was to take place on Tuesday at 14:30. When I talked to her on Monday she said she got a reference from them but back tracked when I asked her who from to say she cannot confirm or deny that she got a reference. Yesterday I found out that she admitted to 2 other people that it was a reference and I know 100% she only contacted the German crowd. I have submitted a Data Access Request for the phone calls as well as the contents of the reference.

I'm pretty sure she contacted someone she knew there and was given the reference off the record. At this point I have absolutely no interest in the company who pulled the job offer. I simply want to make sure the Germans abide by the contract that I signed in good faith.

davo10

A data request for a phone call? If nothing was written down/they disposed of what was written down after receiving your request, where does that leave you?

You might be better off just contacting your previous employer and warning them about future conduct and leaving it at that. This is the way it works, a simple question off the record, "would you employ this person again?" A simple "no" answer is not giving you a bad reference, but it's enough to send a clear message to the new employer.

Mm0R

Yes a data request for a recorded phone call. Transcript or recording, either would work. I realise how it works but in my situation I have a settlement agreement. The reference section is quoted above. The non-disparagement clause states "the company and its directors agree not to make or cause to be made any statement (whether of fact, belief or opinion) which directly or indirectly disparages, is inimical to or damages the reputation or standing of the employee". Its a legal document, what would be the point in signing a contract with a clause like this is it can simply be bypassed with an off the record question and answer?

davo10

But the whole point of an "off the record" phone call, is that there is no record, transcript or recording. You will get a letter back saying there is no record of a call, they have covered themselves by giving you the reason why you didn't get the job, they filled it from within.

I understand your frustration, but how will you prove you got a bad reference if no record was made of the call and the person who made it denies making the call?