Employee references

An EAT ruling highlights the need for care when providing references for previous employees.

An Employment Appeal Tribunal decision has established that an employer who provides a discriminatory reference is liable for a loss of earnings claim.  In the case of Bullimore v Pothecary Witham Weld Solicitors the firm had provided a reference to a potential new employer and referred to a previous claim for sex discrimination against which she had made against it, citing a ‘poor relationship’ with the firm’s partners and ‘inflexible opinions.’  As a result the new job offer was withdrawn. 

The original ET found that the past employer was only liable for compensation for injury to feelings and not for future loss of earnings, because the action of the potential employer broke the chain of causation.  However, the Appeal Tribunal ruled that the past employer was liable for the direct and ‘evidently foreseeable’ consequences of its actions.  Both employers were found liable for unlawful victimisation.

Many employers now routinely just confirm dates of employment to ensure that they do not fall into difficulties such as this.  But of course when we are recruiting we would all appreciate a little more information about prospective employees.

The issue in this case was the reference to the employment tribunal for sex discrimination, and that clearly comes under “victimisation” within the Equality Act. Our advice is to be careful when writing references and ensure they are accurate and that any negative comments made can be supported by evidence from the individual’s personal file. Anything that could be deemed to be discriminatory under the Equality Act must be avoided (i.e. reference to any grievances or tribunal actions or absence records that may link to disability).