The EAT finds that references provided after employment has ended can still be actionable in both Employment Tribunals a

29 October 2010

Facts
In S A Bullimore v (1) Pothecary Witham Weld (2) P J M Hawthorne [2010] UKEAT 0189_19_2109 the Claimant’s former employers (X) provided a negative reference to a prospective new employer (Y). The substance of this reference detailed a sex discrimination claim brought against X by the Claimant. The Employment Tribunal concluded that it was this specific information which caused Y to withdraw their offer of employment. It found both X and Y guilty of unlawful discrimination in that they had victimised the Claimant because of her earlier discrimination claim.

With regards to remedy the Employment Tribunal found that X was not be liable to compensate the Claimant for future loss of earnings on the basis that Y’s unlawful act in withdrawing their offer of employment had broken the chain of causation.

EAT Judgment
On appeal, the EAT held it incorrect that future loss of earnings was too remote a loss to apportion to X. The EAT commented that Y’s reaction was a ‘direct and natural consequence’ of the information supplied by X, even though it was in itself unlawful. Significantly, the EAT recognised that although the prospective new employer’s actions were unlawful in this instance; this would not always be the case. This in turn provided for a situation in which potential Claimants could be left without a way of recovering under this specific head of loss. Having deemed this an ‘unsatisfactory’ situation, the EAT remitted the case back to the Employment Tribunal for it to consider the Claimant’s loss of earnings claim.

Comment
The decision of the EAT is not radical, it closely follows the decision of the Court of Appeal in the recent case of Chagger v Abbey National PLC and another. It does continue the trend in holding former employers increasingly liable for the consequences of references. It is as yet unclear whether liability for such loss will be apportioned between respondents or if it can be a joint and several liability.

What is clear is that both past and prospective employers do need to take care in the provision of and treatment of references.