Employers are often nervous about giving references at the best of times, but how do you go about drafting one for an ex-employee who has previously brought a claim against you? Answer: very carefully.
In Bullimore v Pothecary Witham Weld Solicitors, Ms Bullimore fell out with her employers PWW about her promotion prospects, leading her to resign and bring constructive dismissal and sex discrimination proceedings. Those proceedings were settled on terms including the provision of a reference “consistent with those already provided”, i.e. pretty bland.
After some years at another firm Ms Bullimore was made redundant and sought a reference from PWW to her prospective new firm, Sebastians. The reference provided by PWW was, shall we say, unhelpful. It referred to her “poor relationships” with that firm’s partners, to her having brought a sex discrimination complaint against the firm and to her being on occasion “inflexible as to her opinions”. In consequence the employment with Sebastians did not proceed. Ms Bullimore sued both firms for victimisation – PWW for giving the negative reference and Sebastians for relying on it and the Employment Tribunal found both firms liable.
This was not a surprising decision for PWW – not only was the reference given in breach of the Compromise Agreement, but the references to her sex discrimination claim and inflexibility of opinion were found to be gratuitous despite the bold suggestion by PWW that the one was only intended to explain why she had resigned and the other was actually intended to be a compliment. However, the finding does pose difficulties for an employer giving a reference for an employee whose performance or conduct it genuinely did not rate. It must tread a thin line between its duties to the prospective employer and those to the employee even at the best of times, but where the employee has alleged discrimination the position is more complex still.
The question is then not whether the negatives included about the employee are true as a statement of fact, but whether the employer’s decision to include them at all is motivated by the discrimination allegation. The EAT made it very clear that any significant causative link between the allegation and the inclusion of the negatives would be sufficient to establish victimisation, even if that link were unconscious. In this case the Tribunal had looked into the attitude of the PWW partner giving the reference and found a “thread of annoyance” about the Claimant. Even though this was no doubt partly caused by Ms Bullimore’s father driving into the partner’s car and then into his garden shortly after she left PWW (the EAT perhaps wisely declining to comment further), this thread was found as a fact to be connected also with the earlier discrimination proceedings. It had not been PWW’s prior practice to give references in such negative terms, so the Employment Tribunal concluded that even if those terms were factual, the reference still constituted unlawful victimisation.
For Sebastians, however, the decision might be seen as particularly tough luck. If a prospective employer receives a bad reference, is it not entitled to rely upon that without enquiring as to any lack of good faith behind it? The Tribunal concluded that Sebastians’ decision not to proceed with the offer had been particularly motivated by PWW’s mention in the reference of the sex discrimination claim, hence the victimisation finding, but that seems harsh in circumstances where the remainder of the reference would have justified that decision regardless.
This leaves recruiting employers exposed, in that there may be perfectly good grounds to find the reference unsatisfactory but rejection on those grounds may be alleged to be victimisation if the former employer also included something inappropriate (essentially, any reference to allegations of discrimination). The best (and still not guaranteed) solution must be to create a meeting or file note recording a conscious disregarding of the overtly inappropriate piece and a conclusion that the other parts by themselves justified a decision not to proceed.
Prior to the remedies hearing Ms Bullimore reached a settlement with Sebastians, so the only issue for consideration was the extent to which PWW should compensate her for the financial losses arising from the withdrawal of the job offer. PWW argued that it should not have to pay her anything because it was Sebastians’ unlawful act in withdrawing the offer which had caused the losses, and that this “broke the chain of causation” between PWW’s own unlawful act and the losses suffered. The EAT was perceptibly unimpressed. It said that it was entirely foreseeable that a new job offer would be withdrawn if PWW gave a reference suggesting that Ms Bullimore was “trouble”. The fact that Sebastians’ actions were in themselves unlawful did not get PWW off the hook. The EAT observed that “as a matter of public policy and fairness, PWW ought plainly to be liable here. Where 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”. Logically this makes sense – even if Sebastians had acted entirely lawfully in relying upon PWW’s reference, any resulting loss would still have fallen to PWW.
Note that the key words here are not “adverse”, but “given for an illegitimate reason”. Where an employer feels itself compelled to give an adverse reference to a discrimination claimant, it may be desirable to make a note of why, i.e. how it would be failing in its duty to itself or the prospective employer if it did not do so. In carrying out that exercise it needs to consider what it has done in the past – if an employer has previously been quite happy to sweep assorted behavioural or personality deficiencies under the carpet of a bland “He worked for us from [date] to [date] as [title]” reference, the Tribunal will not be much moved by a sudden claimed respect for the sanctity of truth in a reference for an employee alleging discrimination.
Against that, nothing in this case or the general law requires an employer to give a discrimination claimant a reference which is more favourable than would otherwise have been the case. Though it may be tempting to give the employee a better-than-appropriate reference in order to prevent the issue arising, this could be fatal if the ex-employer is then or later facing litigation revolving around the employee’s lack of competence or misconduct.
The giving of damaging references, or refusing to give a reference at all, is the most common type of victimisation complaint. While managers who have been sued or threatened by an ex-employee are unlikely to want to provide a glowing reference, they should resist the temptation to say what they really think. It goes without saying that they should steer clear of mentioning the fact of any allegation of discrimination. To minimise the scope for claims, employers should ideally also have a clear policy in place over who can provide references and what they should include.