A recent case in the Employment Appeal Tribunal serves as a reminder to employers that care should be taken when providing a reference for an ex-employee (Bullimore v Pothecary Witham Weld).
Miss Bullimore, who is a solicitor, had been made redundant and was subsequently offered a job by a firm called Sebastians (S), in March 2008, subject to satisfactory references. One of the referees she named was a partner in Pothecary Witham Weld (PWW), for whom Miss Bullimore had worked between 1999 and 2004 when the firm was called Witham Weld (WW). Although WW had provided Miss Bullimore with a bland reference on an earlier occasion, the reference given this time referred to the fact that she had brought Employment Tribunal (ET) proceedings against the firm for unfair dismissal and sex discrimination, described her as having a poor relationship with some of her colleagues and said that she ‘could on occasion be inflexible in her opinions’. S followed up the reference by speaking with the partner who had provided it.
On the basis of the information received, S changed the offer made to Miss Bullimore, without contacting her directly to explain its reasons for so doing, to incorporate a six-month probationary period, during which time she could be dismissed with one month’s notice. Miss Bullimore did not agree to the revised terms and the impasse effectively led to the job offer being withdrawn.
Miss Bullimore brought claims against both firms of solicitors and against the individual partner at PWW who had provided the reference. The ET found that both the giving of the reference and the withdrawal of the job offer constituted unlawful discrimination by way of victimisation. It described the reference as both ‘damaging’ and ‘negative’ and, in its view, S’s decision to withdraw the job offer had been specifically influenced by the information provided by PWW that Miss Bullimore had brought earlier sex discrimination proceedings against her former employer, which constituted a protected act. However, the ET found that the withdrawal of the job offer by S ‘broke the chain of causation’ so the individual partner and PWW were not liable for the consequent loss of earnings. The claim against S was settled for £42,500 before the remedies hearing took place and the ET awarded Miss Bullimore £7,500 for injury to feelings arising from the initial reference.
Miss Bullimore appealed against the failure to make an award for loss of earnings as a result of the provision of the reference and against the level of damages awarded for injury to her feelings.
The EAT declined to increase the award for injury to feelings. However, in response to PWW’s argument that the damage suffered by Miss Bullimore by way of loss of earnings was too remote for them to be liable, the ET ruled that the ET had erred in law on the point of causation. It was evidently foreseeable that S might react to the terms of the reference in the way it did, even if such a reaction would constitute unlawful discrimination. A reference which suggests a prospective employee is ‘trouble’ is liable to have precisely the result that it did in this case. So, far from being remote, the consequence of the unfavourable reference was close and direct.
The EAT therefore referred the question back to the ET to consider Miss Bullimore’s claim for loss of earnings.