As is well known there is no general rule that an employer must give a reference for an (ex-)employee, but if he does give one he must take reasonable care to ensure that it is fair. A case at the end of September in the Employment Appeal Tribunal shows how important it can be to take care when giving a reference for an ex-employee.
Solicitor Ms Bullimore was employed by a firm of solicitors from 1999 to 2004. After she left she claimed unfair dismissal and sex discrimination and an “out of court” settlement was agreed. She then got a job with another law firm, the first one providing a “bland reference”.
Some four years later she was made redundant and was offered a job by a third firm of solicitors, subject to receipt of satisfactory references. The first firm provided a reference but this time included a number of negative comments about Ms Bullimore. Specifically the reference noted that she had brought employment tribunal proceedings against the first firm. It also referred to her poor relationship with the partners and said that “she could on occasion be inflexible as to her opinions”. As a result of this reference the third firm changed its job offer to include a six month probationary period. Ms Bullimore was not happy with this and the resulting impasse led effectively to the job offer being withdrawn.
Ms Bullimore then sued both firms of solicitors and the individual partner in the first firm who had given the reference. She settled her claim against the firm which had withdrawn its job offer (for a substantial sum – £42,500) but her claim against the first firm, and the individual partner who had provided the reference, went to an employment tribunal. She won, essentially on the basis that she had been victimised for having brought a sex discrimination claim and the tribunal awarded her £7,500 for injury to feelings.
Ms Bullimore was not satisfied with the £7,500 and appealed to the EAT. Although the EAT refused to increase the award for injury to feelings it referred the case back to the employment tribunal to consider an award for loss of earnings, rejecting the first firm of solicitor’s argument that the damage was too “remote” for them to be liable. The EAT stated that, as a matter of principle, “When 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 …”.
There was one crumb of comfort for employers in that the President of the EAT noted that the original employment tribunal’s conclusion “might, without reference to the detailed facts, seems rather harsh: the position of employers who are asked for references for employees with whom they have fallen out is a very delicate one…”. Nevertheless the overriding message for employers is to take great care when providing a reference for an ex-employee.
This is an item from our October 2010 newsletter. If you are interested in subscribing to our monthly newsletter please click here.
