1. This site uses cookies. By continuing to use this site, you are agreeing to our use of cookies. Learn More.
  2. Hi Guest, welcome to the TES Community!

    Connect with like-minded education professionals and have your say on the issues that matter to you.

    Don't forget to look at the how to guide.

    Dismiss Notice

Job offer withdrawn - unsatisfactory reference

Discussion in 'Jobseekers' started by xtra, Jun 22, 2015.

  1. xtra

    xtra New commenter

    A job offer has been withdrawn due to an unsatisfactory reference from a previous employer. The reference was made over the telephone and the school who made the offer will not provide me with details as to who provided the reference and why it was unsatisfactory. Obviously I want to find out what was said about me and why, I wasn't expecting this at all. The employer was not my most current, it was a school I left 5 years ago.



    Any advice on tackling this and preventing it from happening in the future? Is there anything formal I can write to either school to encourage them to disclose details under the data protection act?
     
  2. CWadd

    CWadd Star commenter

    Ouch - sorry to read this. I'm pretty sure a school does not have to disclose details of a reference - and they also cannot be prevented from writing an unsatisfactory reference.

    If its a school you left five years ago, its possible the line manager or HT you put down may have moved on, and the information given was insufficient for this new school.
     
  3. John_in_Luton

    John_in_Luton Occasional commenter

    But, as it was five years ago anyway, and not your current or most recent employer (in which case you would have no alternative but to give them as a referee), I'd just not use that school again for a reference.
     
  4. slingshotsally

    slingshotsally Star commenter

    Hi OP,

    Sorry to hear this. Gut churning.

    CWadd & John_in_Luton- it's very difficult for teachers who have taken time out for caring duties to actually have more recent references.

    Hopefully Theo and GLsG can advise too.

    SAL
     
  5. Middlemarch

    Middlemarch Star commenter

    Agreed. But in this case, the OP said it was "not my most current", indicating that they DO have more recent employer(s). S/he should, therefore, take care not to use that reference source in future.
     
  6. eburor

    eburor New commenter

    I disagree CWadd. You are not obliged to disclose a reference YOU have written but you are (in the vast majority of cases) obliged to disclose a reference you have RECEIVED from someone else. See the guidance note from ICO for further information. Even if the reference was requested in confidence, it is unlikely to provide a defence to the school, since it limits OPs rights and actions.

    To OP, submit a 'subject access request' to the school that withdrew their offer. The fee for this should be no more than £10 (it is limited by statute) and specify that you explicitly want to see the reference (or notes on, or emails referring to, that reference) they refer to. If they refuse, complain to the ICO. I think youll almost certainly find out what the reference said at some point although I think people have 35 days to comply with the act and if you have to go via the ICO it may take considerably longer.

    One problem is that the reference was made over the telephone (convenient?). But remind the school that they made you an offer (which formed a contract) and are now seeking to back down from that. If they want to break a contract, they better have evidence to back up their stance or you'll be taking them to court and probably winning 'on the balance of probabilities.'
     
  7. CWadd

    CWadd Star commenter

    Eburor - thanks for clarifying. Appreciated!
     
  8. TheoGriff

    TheoGriff Star commenter

    Not all of the reference, however . . .

    Can I see my references?

    If the notes are not held in a "relevant" filing system as defined by the DPA then you have no right to see them.

    Absolutely no proof of what was said to whom by whom . . .

    It is a veritable minefield, and I wouldn't hold my breath in asking for the information. Much better to accept that this is not a good reference to give. After all, what would you do with the information once you got it? Personally sue the referee?

    Much better to give two referees from your current post; especially as five years ago is some time - you will have upped your performance and contribution since then.

    Who should be my referees?

    Best wishes

    ___________________________________________________

    Meet Theo on line on the TES JobSeekers Forum, where she answers jobseeking and careers queries regularly each week.
     
  9. NobodyKnowstheTrouble

    NobodyKnowstheTrouble New commenter

    In the future, I agree, but...

    the OP is asking about the specific situation of this reference now...

    1. Did the OP double-check that this reference was happy to be a reference? That might have highlighted an issue beforehand

    2. Although not an expert, I think eburor has a valid way/method to deal with this particular situation....

    Very frustrating for the OP, and terrible lesson to learn for the future...
     
  10. eburor

    eburor New commenter

    Sorry Theo, but a lot of the information contained in your above post is incorrect.

    Your blog post doesnt quote anything at all from the act itself and makes several statements that are wholly incorrect. You have listed a set of 'restrictions' that are not restrictions in a sense but are guidelines for an employer to balance rights of the referee and the subject. In the blog (a) Confidentiality doesnt preclude it being disclosed. If the employer has told the referee the reference will be in confidence that is an issue between them; it is unlikely to restrict the subjects rights to ask to see that information. In terms of identification in (b) All thats likely to mean is the name of the referee can be redacted but it doesnt change much, if at all. The redaction comes from a desire to protect the referees personal information; not to encroach on the subjects right of access. I see no reason why the statement you mention should be redacted. With regard to your point (c), the act explicitly mentions that 'expressions of opinion' are included as data, see Section 1 (1) of the act itself. Ive made a DPA request myself where I asked for the data to specifically include any expressions of opinion.

    "Relevant filling system" is defined quite broadly in the act. Again, Section 1 (1) states that it means the "set is structured [...] in such a way that particular information relating to a specific individual is readily accessibly." It doesnt have to be a filling system, nor is 'the right of subject access limited to what it would be easy for you to provide access.' (Per ICO guidance document).

    The only document I can find from the ICO on this subject is a good practice note from 2005: ico.org.uk/.../references_v1_final.pdf Note the tone of the final paragraph and in particular "In most cases, you should provide the information in a reference, or at least a substantial part of it, to the person it is about if they ask for it."
     
  11. TheoGriff

    TheoGriff Star commenter

    Thank you Eburor for taking the time to comment on what I have said. I do like to get things right, so welcome your suggestions.



    I will repeat what I say in my blog, however, that this issue is not particularly clear cut, which is why lawyers are consulted about this. My blog gives a general outline of the situation.



    Yes, it's not quoting the Act, it's a general summary of relevant points. This is not even pretending to be a Law Lecture!

    But it's useful to know that you think there are several statements that are totally wrong. As I said, I'd like to get it 100% correct, although in fact even lawyers say that it is open to dispute! So tell me exactly which bits you think should be changed, with specific replacements, and I'll have a look at it. You can PM me with your suggestions. Thanks!



    As for your comments overall, my blog is showing what is likely to happen in practice, in a school, since there is not 100% clarity over the issue.



    The ICO site itself says that you may not get the reference:

    To request a copy of your reference you need to make the request to the employer the reference was sent to. You should make a subject access request in writing. They will then consider if any exemptions apply and if they can release this information to you.

    https://ico.org.uk/for-the-public/employment/

    Note that: They will then consider if they can release this information to you.



    In fact the only way that you can be sure of getting a copy of your reference in England and Wales is if the prospective employer has written to the referee asking for a reference and informing them that it may be shared with the applicant. That way the referee knows in advance and there can be no discussion - you are entitled to it.

    But in every other case, it is open to the prospective employer interpreting the guidelines or the advice from their employment lawyer. And that was what I was setting out in the blog!



    Here is the comment of one Employment Specialist:

    However, if you hold a confidential reference that you received from someone else and you hold it in a way that means it is covered by the Act, you must consider a request for a copy under the normal rules of access.

    An important point in this statement is easily overlooked: you may hold a reference in a way that is not covered by the Act and therefore you can lawfully refuse an employee's request for a copy.

    Held electronically, the Act generally applies and the subject of the reference can demand a copy unless it also provides information about other people. (So the opinions of other people, given in confidence, may be excluded.)

    Held manually, the Act only applies if it is held as part of a "highly structured" manual filing system. Anything less and the reference remains a secret. Accordingly, employers may be persuaded to send references as letters, not as emails, to minimise the likelihood of employees finding out what was said about them.

    http://www.out-law.com/page-6516

    The above pretty much covers what I have said.



    Those are the guidelines that schools are likely to follow, however! So that was the sense that I used the word restrictions.



    But since the referee can object to the reference being disclosed against their will (hence calling it confidential), the receiving school has to bear this in mind, and is possibly likely to decline to give the information to protect themselves from the wrath of the referee. As I say: The recipient has to weigh up the rights of the reference writer not to have his reference revealed, against the rights of the teacher to have fair treatment.

    And again, the advice of employment lawyers is that a referee should say if they don't wish the reference to be disclosed:

    at the very least you should make it clear to the new employer that you do not consent to disclosure of the reference, or the confidential parts of it, to the employee. . . .

    All references should be marked ‘private and confidential’, to make it clear that they are intended only for the person to whom the reference is given (the new employer for example)

    http://www.lawdonut.co.uk/law/employment-law/dismissals-and-redundancies/giving-references





    I am told that anything that identifies can be redacted. And here is a quote from the Data Protection Good Practice Note:

    You should consider whether it is possible to conceal the identity of the referee, although often an individual will have a good idea of who has written the reference. If it is not reasonable in all the circumstances to provide the information without the referee’s consent, you should consider whether you can respond helpfully anyway (for example, by providing a summary of the content of the reference). This may protect the identity of the referee, while providing the individual with an overview of what the reference says about them.

    https://ico.org.uk/media/for-organisations/documents/2775/references_v1_final.pdf



    In that case the information given me was incorrect. Thank you. Although the legal advice above says that opinions may be excluded . . . as does the ICO's Data Protection Good Practice Note:

    An individual can have access to information which is about them, but may not necessarily have access to information about other people, including their opinion, provided in confidence.

    https://ico.org.uk/media/for-organisations/documents/2775/references_v1_final.pdf



    Yes, I know that it doesn't have to be a filing system. However the advice given to me is that anything on a computer is a relevant system, as it can be searched and found, as are most office systems on paper. But that unfiled and unsystematic sheets of paper are not. See the legal advice above.



    Yes indeed, but the first bit In most cases and the last bit or at least a substantial part of it are the two Get Out Of Jail Free cards for the prospective employer.

    I stand by the overall conclusion of my blog:

    <h2>TIP:</h2>


    If your Head won&rsquo;t show you the reference, you could try asking the other school anyway. You might well get lucky and they send it to you in full (because they haven't read or understood the regulations). But do not believe those who assure you that you have an absolute right to see your reference.



    Thank you again for your contribution here, Eburor. I think the overall conclusion must be that this is not a clear area, that employment lawyers can fight it out and charge huge sums for this, and the candidate does not have a 100% right to see the reference in its entirety in all cases.



    Best wishes

    ___________________________________________________

    Meet Theo on line on the TES JobSeekers Forum, where she answers jobseeking and careers queries regularly each week.
     
  12. xtra

    xtra New commenter

    Thats a lot to read! I'm thinking of sending an email to the head of the school I applied to, politely requesting details of what was in the telephone reference. If they don't supply this, will I be able to find out what was said using a subject access request?
     
  13. Deirds

    Deirds Senior commenter

    Surely it's best to move on. What could you do if you did read the reference? Or notes made on a telephone call? I write this knowing that one of my more recent employers has promised to mention an incident that at the time he assured me would not affect any future references. ( had he told me it would affect my future references I would have resigned from the school a year earlier than I did).
     
  14. TheoGriff

    TheoGriff Star commenter

    A good first step. But what will you do if you get it?

    You might. But probably not.

    They may well say:

    * No record was made of the telephone call

    * Any record there was, was destroyed at the end of the appointment process

    * Or any thing else that makes it possible for them to refuse.

    As I said in the earlier posts, there is no guarantee that you will even get to see a written reference. An oral one is even more difficult, as the school may believe that the person who gave the verbal reference will claim that they have mis-represented what was said. People give verbal references so that it cannot be reported what was said, anyway, so there will be a lot of reluctance.

    So I go back to the basics - there is really little point in fighting this. Even if - which I consider very unlikely - you did get some notes of the alleged conversation, what would you do? At least with a written reference which does not follow the rules to be true, accurate and fair and not misleading, you have the written proof. But an oral reference? Where's the proof that School B didn't just make up the notes, or at the very least was inaccurate in noting what was said. It's a lost cause.

    Move on. Forget it. Never use that person/school again as a referee. That last point is the most important here!

    Best wishes

    ___________________________________________________

    Meet Theo on line on the TES JobSeekers Forum, where she answers jobseeking and careers queries regularly each week.
     
  15. xtra

    xtra New commenter

    Thanks for the advice. For now I will leave it, but if it happens again i'll be taking it further. I didn't put this school down as a referee, the school I applied to asked if they could contact them because my most recent employer is not a school.
     
  16. Jolly_Roger1

    Jolly_Roger1 Star commenter

    At the risking of showing some of the cynicism for which I am getting a reputation, it occurs to me that the school might be using this as an excuse to get out of employing the OP, as it has found someone cheaper, or a friend of the SMT, etc.
     

Share This Page