The previous employer will be liable for victimsing his worker through a reference to a prospective employer

Bullimore v Pothecary Witham Weld Solicitors & Anor [2010] UKEAT 0189_10_2109

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• Both the previous and prospective employers can be held liable for damages over a discriminatory reference
• The ET was wrong to find that the chain of causation had been broken, that the loss of earnings was too remote
• Essa v Laing Ltd [2004] ICR 746 was applied as to compensation in discrimination cases being governed by the same approach as in the award of common law tort damages.
• Regarding 'remoteness', Laws LJ in Rahman v Arearose Ltd [2001] QB 351 (paras. 29-33, at pp. 366-8) and McManus v Beckham [2002] 1 WLR 2982 were quoted as to the application of "novus actus interveniens".
• The rules of remoteness of damage have changed recently. They now require a value judgment as to the consequences of a wrongful act in relation to damages (paras 69-75 of Lord Nicholls in Kuwait Airways Corporation v Iraq Airways Company [2002] 2 AC 883)

Judge Underhill P of the Employment Appeal Tribunal (EAT) has ruled in Bullimore v Pothecary Witham Weld Solicitors that an employer who provides a discriminatory reference (here the Claimant had been victimised, contrary to section 20A of the Sex Discrimination Act 1975), may be found liable for loss of earnings. This will hold even when the recipient of the reference also victimises the Claimant as a result of the reference.

The Claimant was a solicitor whose previous employer provided an unfavourable reference resulting in a prospective employer withdrawing an offer of a job. As they were influenced by previous protected act on the part of the Claimant the previous and prospective employers were held to have discriminated against the Claimant by way of victimisation

The Tribunal had found that the prospective employer was not only responding to a negative reference but had rather been influenced to withdraw the offer after finding out through the reference that the Appellant had brought sex discrimination proceedings. This constituted an "protected act" specified in section 4 (1) (a) of the 1975 Sex Discrimination Act. The ET therefore held that the withdrawal constituted unlawful discrimination, by way of victimisation, contrary to section 6 (1) of the SDA.

The Tribunal held that the claim for loss of future earnings against the reference provider was too remote.

The EAT overturned the ET's ruling that the Claimant could not hold the the previous employer liable for loss of future earnings as this was too remote. The reasoning of the EAT was that this is form of victimisation is not uncommon. Furthermore if the prospective employer's motivation was not to victimise the Claimant then there would be no remedy for the aggrieved Claimant's resulting financial damage.

The EAT therefore suggested that any damages accruing to the Claimant should be worked out according to the degree of culpability of the reference provider and recipient.