News | Employers Beware of Giving Negative References
For most employers, receiving a reference request for an ex-employee is a fairly regular event, and many employers have asked Watson Esam’s employment department, “how honest shall we be?” Well, in a recent case, Bullimore v Pothecary Witham Weld Solicitors, the Employment Appeal Tribunal (EAT) has shown what the result of offering a negative reference can be.
In this case a solicitor, Miss Bullimore (Miss B) brought a claim of unfair dismissal and sex discrimination against her employers Pothecary Witham Weld (PWW) when she was dismissed, but those proceedings were eventually settled. Later, she was offered employment by another employer Sebastians, subject to satisfactory references and she gave the name of Mr H (the manager of her department at PWW) as a referee. In his reference her referred to Miss B’s poor relationship with the partners and the practice director of PWW. He also referred, not simply to the fact that she had resigned (gratuitously), but to the fact that she had brought employment tribunal proceedings against PWW and he also advised that she could, on occasion, be inflexible as to her opinions. This led to Sebastians withdrawing the job offer and Miss B sued for victimisation.
The tribunal ruled that the reference was ‘damaging’ and ‘negative’ and it had been significantly influenced by the fact that Miss B had brought sex discrimination proceedings against PWW. Despite awarding Miss B £7,500 for injury to feelings against PWW, the Employment Tribunal itself did not allow a claim for loss of earnings. However, this was overturned by the EAT who ordered that loss of earnings should be paid, but that PWW itself was not liable for this as Sebastians’ withdrawing the job offer had “broken the chain of causation”. The EAT said that PWW could have foreseen that the new employer might react to the information provided in exactly the way that they did, even if such a reaction would constitute unlawful discrimination. The withdrawal of the job offer was as a direct result of the information received in the reference by Sebastians – who had decided that Miss B would be “trouble”.
Clearly, the whole purpose of a job reference is that a prospective employer will take it into account when deciding to whom a job should be offered. The Tribunal expressed that this particular reference was “negative and damaging” and an act of victimisation liable to have precisely the result that it had. The withdrawal of the offer was "the very kind of thing" which was liable to happen.
In this case Miss B settled her claim against Sebastians for loss of earnings for £42,000 before the EAT remedies hearing, and her £7,500 award for injury to feelings against PWW was upheld.
Businesses should be aware that claims for victimisation can arise a long time after employment has ended. In this particular case it was 4 years. Employers should be very careful when writing references and in particular should not refer to employment claims brought by employees.
