Do I have to reveal past dismissal?

[Secretary78]

Three years ago I was dismissed on the spot for being 25minutes late for work and wearing jeans in the office. I started an unfair dismissal action and my former employers agreed the dismissal was unfair and settled out of court for quitea large payoff. The document I signed had a confidentiality clause whereby I cannot even say it was entered into let alone communicate its contents. I was told this was quite normal. I am now completing a job application form which has asked the reason for leaving my previous jobs. Do I have to put that I was ‘dismissed’ from that job? I have had two secretarial jobs since where my bosses will provide references, so there is no need for future employers to contact the company who sacked me. If I do say I was dismissed, am I really legally prohibited from saying what really happened? I have spoken to the company who sacked me and they say if contacted they will say I was dismissed. Any advice would be much appreciated.

[Eloise01]

Re: Do I have to reveal past dismissal?

Three years on the confidentiality clause really isn't worth the paper it is written on. Unless it was the Secret Service who sacked you.

Personally I would accidentally forget to say anything on an application form - just leave it blank. If your application is that good they won't even notice. People forget odd bits on forms all the time.

I would also inform your former employer that since they also signed a compromise agreement, stating that you were dismissed is negligent misstatement because they know the dismissal was unfair and settled as a result of that, and if they do not amend their "tune" then they will end up in court again for a deliberately misleading reference.

[FlamingParrot]

Re: Do I have to reveal past dismissal?

Didn't the agreement also include a standard reference? It's customary to include a reference as part of the agreement, I had one nearly 10 years ago whereby they agreed to provide a reference I'd typed myself to anyone who asked them and I would undertake not to make any 'disparaging remarks' against that company. The agreement was binding for five years so I'm free to make any remarks I want now. :grin:

[Eloise01]

Re: Do I have to reveal past dismissal?

Such a reference is only "standard" because people like me insist on them! I suspect this was actually a COT3 - settled by ACAS. They never tell anyone what they can or should ask for - they are mediators and not advisors.

The five years in your agreement is actually quite unusual (and probably unenforceable!). These agreements are basically contracts - they are only enforceable if the terms are fair and where someone can demonstrate a quantifiable loss arising out of breach. Much like restrictive covenants. As a general rule of thumb, although obviously the terms need to be checked for specifics, lawyers treat them as enforceable for 12 - 18 months, certainly in respect of being able to sue over a breach.

[FlamingParrot]

Re: Do I have to reveal past dismissal?

Such a reference is only "standard" because people like me insist on them! I suspect this was actually a COT3 - settled by ACAS. They never tell anyone what they can or should ask for - they are mediators and not advisors.

The five years in your agreement is actually quite unusual (and probably unenforceable!). These agreements are basically contracts - they are only enforceable if the terms are fair and where someone can demonstrate a quantifiable loss arising out of breach. Much like restrictive covenants. As a general rule of thumb, although obviously the terms need to be checked for specifics, lawyers treat them as enforceable for 12 - 18 months, certainly in respect of being able to sue over a breach.

Yes, it was. I had a lawyer acting for me and this proposal came shortly before the ET hearing was scheduled, which was around 6 months after dismissal. I distinctly remember the five years and in 2005 I actually worked for the company who dismissed me (a large outsourcing outfit that runs many sites, so not the same site I was dismissed from), albeit only as a temp, but I was filling out their own timesheets rather than the agency's. I did it mostly as a test, to see if someone told the agency I'd been dismissed for Gross Misconduct as they'd previously told the mortgage insurance company (but this was shortly after dismissal and around 7 months before the agreement was signed).

It was my lawyer who asked for the agreed reference to be included. Under the circumstances, they had no objection, but that was because they were just a company that took over the original employer who outsourced the department to them, I got suspended less than 2 weeks after the TUPE and it was someone who worked for their client who wanted me fired, not them, they didn't even know me!

[FlamingParrot]

Re: Do I have to reveal past dismissal?

There's another LB member who had a thread on another site about being dismissed by McDs, he got several offers of settlement and kept rejecting them and asking for more, he got quite a good one considering how much McDs normally pay and how long he'd been with them. A reference was also part of the package, although in that case it would probably be just a matter of confirming dates.

In my experience, past employers often just confirm dates rather than going into specifics, and prospective employers are also accustomed to getting just dates. The whole referencing process has turned into a day-by-day account of your past 3-5 years rather than anything relevant and meaningful about your work. May be different in other industries but the large companies I know all seem to do that.

[leclerc]

Re: Do I have to reveal past dismissal?

Three years ago I was dismissed on the spot for being 25minutes late for work and wearing jeans in the office. I started an unfair dismissal action and my former employers agreed the dismissal was unfair and settled out of court for quitea large payoff. The document I signed had a confidentiality clause whereby I cannot even say it was entered into let alone communicate its contents. I was told this was quite normal. I am now completing a job application form which has asked the reason for leaving my previous jobs. Do I have to put that I was ‘dismissed’ from that job? I have had two secretarial jobs since where my bosses will provide references, so there is no need for future employers to contact the company who sacked me. If I do say I was dismissed, am I really legally prohibited from saying what really happened? I have spoken to the company who sacked me and they say if contacted they will say I was dismissed. Any advice would be much appreciated.

As part of the settlement did the company not agree about how their records would show you left?

[leclerc]

Re: Do I have to reveal past dismissal?

There's another LB member who had a thread on another site about being dismissed by McDs, he got several offers of settlement and kept rejecting them and asking for more, he got quite a good one considering how much McDs normally pay and how long he'd been with them. A reference was also part of the package, although in that case it would probably be just a matter of confirming dates.

In my experience, past employers often just confirm dates rather than going into specifics, and prospective employers are also accustomed to getting just dates. The whole referencing process has turned into a day-by-day account of your past 3-5 years rather than anything relevant and meaningful about your work. May be different in other industries but the large companies I know all seem to do that.

When I was sacked the reference would merely have stated the date of beginning and end and stated that I was dismissed on x date and nothing more. It was for me to explain to a potential employer the reason why I was dismissed. However, I would have thought that you cannot give a reference to the OP which states that they were dismissed since legally speaking, they were not dismissed fairly and so therefore the whole point of the case is to put the OP back t the position had they not been dismissed, either by giving them their job back or by compensation if that was not the case. If they then give a reference that the OP was dismissed, then that is not accurate at all.

[Eloise01]

Re: Do I have to reveal past dismissal?

Yes, but the risk is that the settlement might disappear! It's a game of chicken. There was another case, also, interestingly, McD, where the guy kept refusing settlement offers (remember, a settlement isn't an admission of guilt or liability) and eventually they just gave up and said, see you in the tribunal then. Problem was, albeit the guy didn't know until he asked me - he hadn't got a case! He was an LIP and hadn't really done anything to read up on the law as it applied - just decided he was right and that was that. He lost of course, and then wanted to turn the clock back and accept a settlement that was no longer on the table - I told him to settle, but it wasn't ever enough for him.

References are always a difficult one - the practices vary enormously. The problem is, nobody has to give a reference, but as soon as they do they take risks. People always think of employees suing, but actually the real risk is other employers suing! If you know something detrimental about someone (sacked, stole the takings, laziest employee of the year and never did a stroke of work... etc - and employees are no more perfect than employers, so we have all met the employee from hell!) and don't mention it, especially if asked... well that also leaves you open to legal risk! Personally, I don't know why employers bother with them any more. The best reference I ever saw - it was absolutely shining and gold plated - was from a Law Centre for one of their legal officers who applied for a job. It so happened that this rang more alarm bells with me than a mediocre one so I made a few enquiries.... the Law Centre were desperate to get rid of him, he was lazy and lousy at his job, caused more trouble than a troop, and was the last person anyone, including them, would want to employ!

[Eloise01]

Re: Do I have to reveal past dismissal?

When I was sacked the reference would merely have stated the date of beginning and end and stated that I was dismissed on x date and nothing more. It was for me to explain to a potential employer the reason why I was dismissed. However, I would have thought that you cannot give a reference to the OP which states that they were dismissed since legally speaking, they were not dismissed fairly and so therefore the whole point of the case is to put the OP back t the position had they not been dismissed, either by giving them their job back or by compensation if that was not the case. If they then give a reference that the OP was dismissed, then that is not accurate at all.

That is the snag - legally speaking they were not unfairly dismissed. Only a tribunal can determine that. The case never went to a tribunal. A settlement does not admit to liability or to guilt. It is not uncommon for employers to settle even when they are in the right - it's cheaper usually!

[FlamingParrot]

Re: Do I have to reveal past dismissal?

When I was sacked the reference would merely have stated the date of beginning and end and stated that I was dismissed on x date and nothing more. It was for me to explain to a potential employer the reason why I was dismissed. However, I would have thought that you cannot give a reference to the OP which states that they were dismissed since legally speaking, they were not dismissed fairly and so therefore the whole point of the case is to put the OP back t the position had they not been dismissed, either by giving them their job back or by compensation if that was not the case. If they then give a reference that the OP was dismissed, then that is not accurate at all.

Of course it's the whole point! That's why my lawyer came up with the agreed ref to ACAS, the agreement included a cause saying anyone asking for employment related references would get the agreed ref, which I myself typed saying I had worked there from xx/yy/zz till xx/yy/zz during which time I did a very good job, i was the bees knees, etc. :blabla: There would be No mention of Gross Misconduct or dismissal, that was the whole point. The money offered was a pittance but my case wasn't very strong because it revolved around with intellectual property and online use - in 2003 all that was clear as mud and it could go either way.

A friend of mine also accepted a similar settlement from the same company a few years later, he resigned and then claimed constructive dismissal, which can be hard to prove, but they promised a good reference rather than saying he'd left under pressure from them to resign. There would be no point in agreeing to anything if they can still go and say bad things about you to future employers!

[FlamingParrot]

Re: Do I have to reveal past dismissal?

Yes, but the risk is that the settlement might disappear! It's a game of chicken. There was another case, also, interestingly, McD, where the guy kept refusing settlement offers (remember, a settlement isn't an admission of guilt or liability) and eventually they just gave up and said, see you in the tribunal then. Problem was, albeit the guy didn't know until he asked me - he hadn't got a case! He was an LIP and hadn't really done anything to read up on the law as it applied - just decided he was right and that was that. He lost of course, and then wanted to turn the clock back and accept a settlement that was no longer on the table - I told him to settle, but it wasn't ever enough for him.

It's a big gamble! I also told this guy (on the forum) to take the money and run (as i did!) when he had the first offer, but he kept playing hard to get. He was also a LIP. I guess he got lucky!

References are always a difficult one - the practices vary enormously. The problem is, nobody has to give a reference, but as soon as they do they take risks. People always think of employees suing, but actually the real risk is other employers suing! If you know something detrimental about someone (sacked, stole the takings, laziest employee of the year and never did a stroke of work... etc - and employees are no more perfect than employers, so we have all met the employee from hell!) and don't mention it, especially if asked... well that also leaves you open to legal risk! Personally, I don't know why employers bother with them any more.

I guess it depends on the circumstances, in my case it was all over whether I should have examples of my work on a website or not and what kind of examples would have been acceptable to show, whether I built a website for a colleague and emails to a friend of mine working at another company. They often don't bother with real references, he de what I said about confirming dates, seems to be exactly for the reasons you state above.

That is the snag - legally speaking they were not unfairly dismissed. Only a tribunal can determine that. The case never went to a tribunal. A settlement does not admit to liability or to guilt. It is not uncommon for employers to settle even when they are in the right - it's cheaper usually!

Yes, mine was a commercial settlement with no admission of liability, they'd hired one of them Magic Circle law firms which charged £500+ an hour to act for them, so it was definitely cheaper to settle. I was also warned about costs, if my claim was considered not to have enough merit I could be liable for costs, that did it for me when it came to accepting the settlement.

[Eloise01]

Re: Do I have to reveal past dismissal?

Of course it's the whole point! That's why my lawyer came up with the agreed ref to ACAS, the agreement included a cause saying anyone asking for employment related references would get the agreed ref, which I myself typed saying I had worked there from xx/yy/zz till xx/yy/zz during which time I did a very good job, i was the bees knees, etc. :blabla: There would be No mention of Gross Misconduct or dismissal, that was the whole point. The money offered was a pittance but my case wasn't very strong because it revolved around with intellectual property and online use - in 2003 all that was clear as mud and it could go either way.

A friend of mine also accepted a similar settlement from the same company a few years later, he resigned and then claimed constructive dismissal, which can be hard to prove, but they promised a good reference rather than saying he'd left under pressure from them to resign. There would be no point in agreeing to anything if they can still go and say bad things about you to future employers!

Of course, as I have pointed out on previous thread, none of that excludes "the unproveable phone call". It happens. But you are correct - a CA does not prevent the employer truthfully stating the reason for leaving as dismissal. A CA does not change that. It is the agreement to restrict anything said to an agreed form that does that.

[leclerc]

Re: Do I have to reveal past dismissal?

That is the snag - legally speaking they were not unfairly dismissed. Only a tribunal can determine that. The case never went to a tribunal. A settlement does not admit to liability or to guilt. It is not uncommon for employers to settle even when they are in the right - it's cheaper usually!

If it was settled out of the tribunal is something that should have been dealt with as a settlement otherwise the OP should have gone to the tribunal. I've dealt with a COT3 agreement before which whilst it is confidential should have sorted out that issue. However, how important is that dismissal to the overall application, ie does that employer fall into the category of one that is in requirement of a reference?

[Eloise01]

Re: Do I have to reveal past dismissal?

The standard form COT3 used by ACAS does not deal with any of these sorts of issues. They only get included if people who know enough to insist on additional terms - and most don't, and if they had a lawyer then they probably wouldn't be using a standard COT3 anyway - CA's my clients enter into are written by me and not ACAS or the employers lawyers. But you are making a mistake that people make all the time - you are assuming that a settlement means you have won. It means no such thing. There is no prospect of "settling" that it is an unfair dismissal - that is not the purpose of CA's. Only a tribunal can determine something is an unfair dismissal.