17-Mar-2011
Employers should think twice about giving or acting upon a bad reference as they could be liable to pay substantial damages.
In Bullimore v Pothecary Witham Weld Solicitors and Another, a firm of solicitors had provided a poor reference for Ms Bullimore to her prospective new employer because she had pursued a claim of sex discrimination against them. The reference referred to the sex discrimination claim. As a result, the prospective new employer withdrew its job offer to Ms Bullimore. The tribunal found the actions of both the past employer and prospective new employer to be unlawful victimisation.
The appeal tribunal held that it was ‘evidently forseeable’ that the prospective employer would react to the poor reference as it did, and that it’s reaction was ‘a direct and natural consequence of the supply of the information’, even though it was unlawful.
Most employers will know that they do not have to give a reference for an employee and if they do decide to give a reference, it must be fair and accurate.
What is less well-known is that an employer who gives a poor reference or rejects a job applicant because of a poor reference can be liable to pay substantial damages to that person.
The tribunal noted in this case that the provision of damaging references is a fairly common form of victimisation and while a remedy against the recipient of the reference will not always be available as the response will not always be unlawful, it would be ‘most unsatisfactory if a claimant who lost the opportunity of employment as the result of such a reference were unable to recover substantial damages from her former employer’.
In this case, the past employer was liable to compensate Ms Bullimore for her future loss of earnings, caused by the withdrawal of the job offer, even though the new employer’s conduct was in itself unlawful.