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Unfair reference

Discussion in 'Workplace dilemmas' started by JodiP, Jan 29, 2019.

  1. Piranha

    Piranha Star commenter

    Am I being pedantic in wondering if the law only applies to asking about absence and does not stop it being put into a reference if not asked for?
  2. ridleyrumpus

    ridleyrumpus Lead commenter

    Mmmm, it may seem sensible to you but if it is against the law then good luck.
  3. ridleyrumpus

    ridleyrumpus Lead commenter

    I think any HT who knowingly includes absences due to characteristics covered under the EA2010 would be running pretty close to the wind esp when the said information was not asked for.
  4. serenitypolly41

    serenitypolly41 Occasional commenter

    What bit is against the law? Can someone clarify?
  5. ridleyrumpus

    ridleyrumpus Lead commenter

    Section 60 EA 2010

    (1)A person (A) to whom an application for work is made must not ask about the health of the applicant (B)—

    (a)before offering work to B, or

    (b)where A is not in a position to offer work to B, before including B in a pool of applicants from whom A intends (when in a position to do so) to select a person to whom to offer work


    In this case Person A is the employer and person B the applicant.

    Part b of section 60, seem apposite here.
    border_walker likes this.
  6. ridleyrumpus

    ridleyrumpus Lead commenter

  7. grumpydogwoman

    grumpydogwoman Star commenter

    It would have been safer for the school to have given no reference at all.

    They made a statement to the effect that they ... couldn't really say much. Then decided they were going to explain why they couldn't commit themselves.

    It's not really an egregious offence. Would the union pursue it? I think a stiff letter would be in order to ask them to refrain from making any comments referring to absence.
  8. serenitypolly41

    serenitypolly41 Occasional commenter

    Does an employer have to make comments about absence? I was under the impression an employer can only state number of days off sick but not the reason due to equality which allows the individual to explain it?
  9. caterpillartobutterfly

    caterpillartobutterfly Star commenter

    So you are now saying that references can not contain references to health, which no one has suggested isn't correct.
    However, this doesn't say that a prospective employer can't ask about absence.

    Not saying they can ask about absence, merely that what you have posted doesn't forbid it.
  10. ridleyrumpus

    ridleyrumpus Lead commenter

    I think that that is the thinking but given that schools are unusual in that the see the reference before making the decision to interview I cannot see a figure of days absence with no context as being anything but discriminatory.
  11. caterpillartobutterfly

    caterpillartobutterfly Star commenter

    As I said before, there is no realistic way around this however you choose to see it.
    A decent referee would put an explanation if there was a reasonable one.
    A decent interviewer would ask and accept a reasonable explanation...or simply ignore the absence entirely.

    As many people have left with agreed references after very long periods of stress related sick leave, yet gone on to secure new posts, it clearly isn't a major hindrance.

    Safer recruitment means schools should check identity and safeguarding before appointing. The only way to do this is via references which may also happen to contain something about attendance. If a head didn't want to interview me due to my attendance being less than perfect, I'd probably not want to work for them anyway.
    agathamorse likes this.
  12. serenitypolly41

    serenitypolly41 Occasional commenter

    So are you saying that a context should be given or is it better for the individual to try and provide a context? After all it does concern the individual and could be quite personal and private?
  13. caterpillartobutterfly

    caterpillartobutterfly Star commenter

    If asked, then answer honestly.
    Otherwise, don't bother about it.
    agathamorse likes this.
  14. serenitypolly41

    serenitypolly41 Occasional commenter

    Really? Grumpydogwoman? You are very fortunate in that case.

    I wonder how common health questionnaires are for schools, and in general.
    agathamorse likes this.
  15. grumpydogwoman

    grumpydogwoman Star commenter

    Do not seek information regarding an applicant´s health record or disability

    Under the Equality Act 2010, in effect from 1 October 2010, employers may no longer seek information about an applicant´s health history as part of the general recruitment process. You can only seek this information regarding an applicant who has been offered appointment, to ensure that possible discrimination on the grounds of health or disability has not played a part in the decision-making process. Please ensure that you use the correct template to avoid breach of legislative requirements.

    Exceptions to this will include posts where a physical requirement is an essential part of a role. When recruiting for such a post you must publicise this requirement clearly from the outset and you may include an assessment to meet this requirement as part of the selection process. In such instances, or for further information in general, contact your customary HR contact.

  16. grumpydogwoman

    grumpydogwoman Star commenter

    But the new school didn't pose the question. As far as I can tell.

    The old school took it upon itself to justify failing to comment on personal qualities on the basis that the OP had had a lot (yes, that's purely subjective) time off.

    And they probably shouldn't have done that but who's going to challenge it? Who is going to show that some detriment occurred? Who will quantify it? The HT might possibly be taken to task for making such a comment and I would not advise anyone who provides a reference to act so incautiously.

    I think we shall get to a point where there are 3 kinds of reference.

    1 a whole-hearted endorsement
    2 a bare minimum - s/he worked here from then to then and there have been no disciplinaries
    3 no response

    The 1s will be rare indeed. If you "mislead" someone into thinking a candidate is the best thing since sliced bread then you'd better beware.
    2s will be the order of the day.
    3s will be filed under B
    agathamorse likes this.
  17. ridleyrumpus

    ridleyrumpus Lead commenter

    I don't think you are getting it, it would appear to be at the very least borderline against the law. Are you really saying it is OK to break the law as this way is easier?

    Just don't ask any health related questions until after the interview process, just like the law requires.
  18. caterpillartobutterfly

    caterpillartobutterfly Star commenter

    I am getting that everything you (and one or two others) have posted says not to ask about anything health or disability related. You have not said anywhere that a prospective employer cannot ask about absence.

    The OP's employer has not said anything about health or disability and has therefore not broken the law that you have stated.

    There may well be laws/guidelines about not asking about absence, but you haven't stated them, nor given any evidence for their existence.
  19. Piranha

    Piranha Star commenter

    I am really not convinced that this means that the current employer cannot tell the new employer about health problems. The only legislation quoted by anybody on this thread deals only with the prospective employer asking for information. Can anybody point us to legislation saying it is illegal to give such information when it has not been asked for? It is probably worse if it is asked for, as the person given the reference would know that the person asking had broken the law.

    I am not trying to say that this is right in moral terms, just that it may be OK in legal terms. I can imagine that a few Heads who know each other, might well have an unwritten agreement to pass on such details - illegal, but not possible to prove.
    grumpydogwoman likes this.
  20. frustum

    frustum Star commenter

    I'm trying to imagine what a school does in the hypothetical situation where they are asked for a reference for someone who has been off ill almost ever since starting. I guess all they can do is to say that "they have been employed here since <date> and there are no safeguarding concerns".

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