Both giver and recipient of reference liable

In Bullimore v Pothecery Witham Weld, the EAT considered the case of a reference given by an ex-employer which unnecessarily mentioned the fact that the claimant had brought a sex discrimination claim against them.

The recipient of the reference then changed the terms they were offering her and ultimately their job offer was rejected by the claimant. She claimed victimisation against both the giver and the recipient of the reference.

In her claim against her ex-employer, the employment tribunal decided that she had been victimised but only awarded her compensation for injury to feelings, arguing that she should claim any compensation for loss of earnings from the recipient of the reference which had itself committed a separate act of victimisation by altering the terms on which it was offering her employment.

She appealed and the EAT allowed her appeal.

The EAT said the giver of a reference may be liable for victimisation, which could include loss of earnings from the recipient of the reference, if a job offer is withdrawn or revised as a result of the reference. It was specifically noted this situation was the kind of thing that was likely to happen where negative references were given and the reference giver should expect the recipient to react to such a reference.

Points to note:

  • Both the giver and the recipient of a discriminatory reference may be guilty of victimisation. If, as in this case, the giver of the reference may be liable for continuing loss of earnings, the recipient may still face a claim for compensation for injury to feelings depending on the way the react to the reference.
  • The EAT had some sympathy with the position of an employer who is asked to give a reference for an ex-employee with whom they had fallen out. A fair and consistent approach should be taken. In this case the EAT considered it significant that the ex-employer had previously found no difficulty in giving another party a bland reference for the claimant.