Provision of a poor reference
The Employment Appeals Tribunal
(EAT), in Bullimore v. Pothecary
Witham Weld Solicitors and another,
found that an employer who victimised
a former employee by providing a poor
reference to the person’s prospective
employer, was liable to compensate that
employee for future loss of earnings
when an offer of employment was
subsequently withdrawn.
Following
termination of her
former employment,
Miss Bullimore had
brought a claim for
unfair dismissal and
sex discrimination.
Despite these
proceedings
eventually settling, the
former employer
referred specifically to
them in the reference
that he later provided
to Miss Bullimore’s
prospective new
employer.
As a consequence,
the new employer withdrew Miss
Bullimore’s offer of employment and
she brought a claim against both her
former and prospective employer for
sex discrimination.
The tribunal held that that the
actions of both employers amounted to
unlawful victimisation.
However, despite the tribunal
awarding Miss Bullimore compensation
for injury to feelings, no compensation
for future loss of earnings was awarded.
The former employer was held not
liable as it was the actions of the
prospective employer that had resulted
in Miss Bullimore losing the prospect of
employment.
On appeal, the EAT held that the
decision of the prospective employer to
withdraw the offer of employment was
“evidently foreseeable” considering the
“damaging” nature of the reference
provided.
The EAT highlighted that as
damaging references are used fairly
commonly as a form of victimisation
against former employees, such
employees should, as a matter of policy
and fairness have the opportunity to
seek to recover damages, for subsequent
loss of employment, from their former
employer.
Work-related stress
With work-related stress becoming an
increasingly topical area for employers, it is timely that Chartered Institute for
Personnel and Development has issued
a new guide entitled What the law says.
This highlights the legal
obligation on employers in
identifying and managing stress at
work and explores the potential legal
ramifications of employers ignoring
these obligations. The CIPD has also
focused on delivering advice for
those employers looking to tackle stress through good
management.
- www.cipd.co.uk/
subjects/health/
stress/_work-related-
stress-what-law-says.htm
Associative
pregnancy
discrimination claim
rejected
The EAT, in
Kulikaoskas v. MacDuff
Shellfish and another,
held that no claim for
associative pregnancy
discrimination could be brought by an employee
allegedly dismissed because of his partner’s pregnancy.
K and his partner were both employed for approximately a month
before K was dismissed on the
grounds of poor performance. K
brought a claim for associative
pregnancy discrimination on the basis
that he was dismissed after informing
his supervisor that he had been
helping his pregnant partner lift
heavy weights whilst at work. This
claim was rejected by an employment
tribunal and K appealed to the EAT.
The EAT dismissed K’s appeal. In
determining the applicability of the Sex
Discrimination Act 1975, it held that
pregnancy discrimination relates to the
“woman” on the grounds of the
woman’s pregnancy.
The EAT held that the European
Equal Treatment Directive did not
support associative pregnancy
discrimination as it specifically limits
protection against pregnancy-related
discrimination to a woman. European
law was intended to protect the
“biological condition” of a pregnancy
and could therefore not be extended to
men.
However, discrimination by
association is now prohibited under
the Equality Act 2010. Pregnancy and
maternity are “protected
characteristics”, meaning that
someone associated with a pregnant
person could claim discrimination.
That being said, the draft European
Commission on Human Rights Code
seems to suggest otherwise, taking
the same line as this case.
