A recent case in the Employment Appeal Tribunal (EAT) serves as a reminder to employers that care should be taken when providing a reference for an ex-employee and when making recruitment decisions based on references provided. (Bullimore v Pothecary Witham Weld).
Pothecary Witham Weld (PWW) had provided a reference for a former employee, Miss Bullimore. This 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’.
The Employment Tribunal (ET) found that both the giving of the reference by PWW and the withdrawal of a job offer by her prospective employer, after having spoken with the partner who had provided the reference, constituted unlawful discrimination by way of victimisation. In its view, however, the withdrawal of the job offer broke the ‘chain of causation’ so that PWW was not liable for Miss Bullimore’s consequent loss of earnings. The claim against the prospective employer 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. It disagreed, however, with the decision that the damage suffered by Miss Bullimore by way of loss of earnings was too remote for PWW to be held liable. In its view, it was evidently foreseeable that the prospective employer might react to the terms of the reference in the way it had, 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.