Can I take any action?

[Happyfeet24]

Casting my mind back to Oct 06, I was made redundant out of the blue, I've struggled to pick my career back up since and suffered the usual financial troubles.

 

I've been reading threads on here which have made me question if the process I went through was right. I was handed a letter by the director of the company on the Wednesday which stated the company was considering the option of making people redundant and I had been selected as one of those people and was asked to attend a meeting on the Friday. I went to the meeting on the Friday to be told that I had been considered to be made redundant because I wasn't flexable enough with working hours compared to the rest of the departments employees. I was told to take the rest of the day off and that I would be contacted by phone with the decision. As agreed at 3pm that afternoon I recieved a call from the director telling me that I indeed was being made redundant. I was paid for the rest of the week plus 1 month. The decision on that Friday was exactly 1 week before I had been there for a year, so I know that's why they let me go as the rest of my department had been there for years.

 

Now that was Oct 06 but in mid 07 (I'm not sure exactly when but around summertime) they employed someone to take my old position. It may not make a difference but it annoyed me. Am I too late that it's now turned 09 to complain if there has been any proceedures not correctly met?

[elche]

Hi happyfeat,

 

Employment tribunals do have a discretion to accept late claims, but as the normal time limit is 3 months from EDT and you say you were dismissed in October 2006, then you're well out.

 

Of course any contractual claims you may have would have a 6 year limit in county court, but this would not apply to claims such as unfair dismissal.

 

My advice would be to forget all about it and move on as your chances getting a claim accepted by any ET are basically zero!

 

Kind regards

 

Che

[Happyfeet24]

Thanks Che,

 

I didn't realise that it was 3 months. My fault then for accepting it at the time and moaning 2 years later:( There are no contractual issues with this one, only that proper proceedures weren't followed when dealing with the process, but based on what you've said then I'll lay this one to rest

 

all the best

Happyfeet

[Conniff]

No good now, but if the dismissal was one week before the 12 months and you were paid a weeks notice, that would take you over the year.

[Happyfeet24]

Hi Conniff,

 

It was one week and then a months pay, but yes, the weeks notice period did go past my exact start date 12 months previous. They said they didn't want me to work the week but paid me for it.

 

So I could have acted if I'd been within the 3 months time scale? I don't know the ins and outs of employment legal issues, only that after 1 year the goal posts change slightly, but even then I don't know to what extent.

 

Is there nothing I can do? Even if I were to risk court costs myself? Or is there no case to answer at all now?

[Happyfeet24]

The second part to this terrible experience was that after the redundancy, I set up an interview myself for a company in the same trade as my previous employer, but after having the interview they told me a few days later that they had spoken to my previous employer and would not be able to offer me the position.

 

I then approached my ex employer to ask for an explanation and was told that he'd spoken to the company I'd approached and he'd told them his opinion (with a smile on his face!)

 

I may sound like a bitter ex employee, and maybe in some respects that is what I may be. But, I'm the one that was treated badly. The company I worked for was a very small family run business that promised the world (as much of the world a small business could give) I then started a relationship with the Son of one of the employees (we're now married) and from that very day my career was dead as my employer was not happy. It was only then that the redundancy happened and the 'slander' against me when I tried to get another job. So when I say this company has put me in financial hardship, I really mean it.

 

If there is no case with the unfair redundancy. Is there a case with the bad reference given to my potential employer? Even if somebody can guide me to a link that shows the current laws for giving references and slander then I'd be grateful

[Conniff]

If there was slander, how do you prove it. He said he had 'spoken' to the company so unless you can get him or the new company to tell you or put in writing what was said then slander is only speculation.

 

It's not unlawful to give a bad reference, but it must be true and that is what you need to acertain.

 

Bosses are bosses and even from opposing companies have some sort of bond, so if you could get to the company boss and ask him why they couldn't offer you employment, he probably wouldn't tell you as it is 'commercial in confidence' or some other such term.

 

Sorry, made an error there, I thought you said son of the boss.

Edited January 3, 2009 by Conniff
Read text wrong.

[Happyfeet24]

Hi Conniff,

 

I was hoping there was some avenue I could use to bring justice, but I'll leave them be, it's just too long ago. It's one of those 'if only I'd known then what I know now' moments.

 

*if only*

 

Being family run they are and always were very hush hush amongst their family/business meetings.

 

I'll focus on the dca's. Afterall, they're the one's that have made me this bitter:mad:

 

Thanks again Conniff:)

[monkeychicken]

You can ask for the reference under Data Protection Act from both the employees.

 

When did the interview happen?

 

Your old employer still has certain obligations to you.

[patdavies]

You can ask for the reference under Data Protection Act from both the employees.

 

No, you can't.

 

This guidance from the Information Commissioner's Office explains.

 

You can't get it from the referee employer; you may be able to get it from the employer to whom the reference was provided - also depending on whether they have kept the reference in a relevant filing system.

[nevos]

Just my 10 cents worth here : Tribunals have no power to enforce payment even if you win hands down.

[monkeychicken]

No, you can't.

 

This guidance from the Information Commissioner's Office explains.

 

You can't get it from the referee employer; you may be able to get it from the employer to whom the reference was provided - also depending on whether they have kept the reference in a relevant filing system.

 

Thanks for that - I had actually mistyped, it should have read "from both employers"

 

Your old employer still has certain obligations to you, particularly to provide an honest reference. Tribunals have ruled come obligations outlive your employment contract.

[patdavies]

Thanks for that - I had actually mistyped, it should have read "from both employers"

 

Your old employer still has certain obligations to you, particularly to provide an honest reference. Tribunals have ruled come obligations outlive your employment contract.

 

But that still doesn't mean that you can get a copy of it. From either employer.

[monkeychicken]

• Heres an extract from etclaims website - perhaps this will help

  
  

• Bad references and what you can do about them
  

9 July 2008 / Naomi

 

A good reference from your current or former employer can be extremely important if you are looking for a new job. In some circumstances the hope of a good reference that will allow you to go further will be a substantial part of the reason for doing a particular job at a particular time.

How can I find out if my employer is giving me a bad reference?

 

If you are offered a job ‘subject to receipt of satisfactory references’ and the offer is subsequently withdrawn, you can make a shrewd guess that an unsatisfactory reference has been provided.

Any temptation to try ‘mystery shopping’ by getting a friend to request a reference for you is best resisted. (Although tribunals often let snooping by employers pass without comment, there is something of a double standard in operation: they are likely to throw up their hands in horror if an employee uses subterfuge or deception to collect evidence.) A better method is to ask the recipient of the reference for a copy of it. An employer with a rudimentary sense of fairness may feel that if they’ve withdrawn a job offer to you because of a poor reference, you ought at least to be allowed to know what has been said.

If simply asking doesn’t work, you can make a subject access request to the recipient of the reference under the Data Protection Act. (Curiously, the organisation that provided the reference will not be required to disclose it because of a specific exception in the DPA.) Straightforward guidance on how make a subject access request is available from the Information Commissioner’s Office.

What can I do about a bad reference?

 

There are various possibilities, though their availability will depend on the circumstances:

breach of contract

negligence

victimisation

detriment in employment

defamation breach of contract

 

If you were still employed by the employer who has given you a bad reference at the time they gave it, then if the reference is unfair or misleading you can try arguing that giving it amounted to a breach of your contract of employment. There almost certainly won’t be an express term in your contract about references (though if on recruitment your negotiating position is strong enough to allow you to rewrite your contract, it wouldn’t be a bad thing to include one), so you will have to fall back on the implied term of ‘trust and confidence’ term: see TSB Bank plc v Harris [2000] IRLR 157.

If your employment has ended by the time the reference is given, you won’t be able to rely on the trust and confidence term. In the unlikely event that you have managed to get an express term about references inserted into your contract of employment, you may be able to rely on that, provided the term makes it clear that this is a contractual obligation on your employer that survives the end of the employment relationship.

The only other way you might have a contractual claim is if your employment has terminated or a claim arising out of your employment was settled on agreed terms, including terms as to the reference that will be given. If that is the case, then if you believe that your former employer has acted in breach of the agreement, you can sue for damages in the County Court.

Negligence

 

In Spring v Guardian Assurance [1994] ICR 596, the House of Lords confirmed that an employer or former employer owes a duty of care to the subject of a reference. If you can show that your former employer negligently included false or misleading information about you in your reference and you suffered loss as a result, you can sue in the County Court.

Victimisation

 

If you can show that the reason for the unfavourable reference is that you had previously brought a discrimination claim against your former employer, then the bad reference is an act of discrimination by way of victimisation (see glossary).

Detriment in employment

 

If you were still employed at the time the reference was given, and you can show that the reason for the bad reference was a protected disclosure one of the things mentioned at sections 43M to 47E of the Employment Rights Act 1996 (things like whistleblowing, and exercising various statutory rights such as the right to time off for jury service, or the right to request flexible working), then you can ask an employment tribunal to award you compensation for an unlawful detriment in employment.

Defamation

 

If your former employer maliciously gives out false information about you, you could in theory have a defamation claim. Proving malice is likely to be difficult, and in most cases where you might have a chance of showing malice, you will probably be able to show negligence more easily. A defamation claim in this context will rarely be a good idea.