Bullimore v Pothecary Witham Weld Solicitors
Employers do not have to provide references, but if they do the information in them must be accurate and truthful. In Bullimore v Pothecary Witham Weld Solicitors, the Employment Appeal Tribunal (EAT) held that an employer who provided an adverse reference for an illegitimate reason had to compensate the claimant for future loss of earnings when the prospective employer withdrew the offer, despite the fact that they had also victimised the claimant by withdrawing it.
Basic facts
Ms Bullimore, a solicitor, had worked for Pothecary, Witham, Weld (PWW) solicitors under the management of Mr Hawthorne from 1999 to 2004 when her employment was terminated. She brought claims of unfair dismissal and sex discrimination which were settled by the firm.
After being made redundant from another job, she was offered a post with a firm called Sebastians in March 2008, subject to satisfactory references.
Mr Hawthorne agreed to provide one but stated in it that Ms Bullimore had had poor relationships with the partners; had brought tribunal proceedings; and “could on occasion be inflexible as to her opinions”.
Mr Sebastian was concerned by the reference and had a telephone conversation with Mr Hawthorne about it, after which he revised the offer. Ms Bullimore was unwilling to proceed on the new terms and it was effectively withdrawn.
She brought a claim for victimisation against PWW, among other things.
Tribunal decision
The tribunal found that giving a reference in the terms in which he had amounted to a detriment. As Mr Hawthorne had been significantly influenced in what he said by the fact that Ms Bullimore had previously brought proceedings against the firm, the tribunal said it constituted unlawful victimisation.
However, the tribunal then went on to hold that the unlawful actions of Sebastians (by telephoning Mr Hawthorne and being influenced by the fact that Ms Bullimore had brought proceedings) "broke the chain of causation". It held that PWW was not therefore liable for compensating her for future loss of earnings and awarded her compensation only for injury to feelings.
EAT decision
The EAT disagreed, however. It said that it was “evidently foreseeable” that Sebastians might react to the information provided by Mr Hawthorne in the way that it did (even though that constituted unlawful discrimination), given the damaging and negative nature of it.
As far as the EAT was concerned, it therefore only seemed fair that PWW should be liable. “When an adverse reference, given for an illegitimate reason, leads to an employer deciding not to make, or to withdraw, an offer to a candidate it is hard to see why that consequence should be regarded as too remote to attract compensation from the giver of the reference: so far from being remote, it seems to us both close and direct”.
As the EAT noted, giving damaging references is not an uncommon form of victimisation. It would therefore be “most unsatisfactory” if a claimant who “lost the opportunity of employment” as a result could not claim substantial damages from their former employer.
It remitted the issue back to the tribunal to consider Ms Bullimore’s claim for loss of earnings.