EAT upholds victimisation claims

PWW lost the appeal in a case that established that the reverse burden of proof applies to victimisation claims under the Sex Discrimination Act 1975 (‘SDA’).

Bullimore had worked as a salaried partner in the dispute resolution department at Witham Weld (now PWW).

Bullimore experienced what was termed as a ’personality clash’ and ultimately resigned in 2004, claiming constructive unfair dismissal and sex discrimination.

The firm settled the claim and agreed to provide a reference to potential employers which was ‘consistent with those already provided’.

In 2004, Bullimore joined a new firm and Peter Hawthorne of PWW gave her a ‘bland reference’.

In 2008, Bullimore applied for a job at Sebastiens.  On this occasion, when asked for a reference, Hawthorne’s reference referred to her ‘poor relationship with the partners and the practice director’ and he also referred to the employment tribunal proceedings.  Bullimore was also described as ‘inflexible in her opinions’.

Upon receipt of the reference, Sebastiens insisted that Bullimore undergo a probationary period, and after further discussion, the offer did not proceed at all.

Bullimore sued PWW, Hawthorne and Sebastiens.

The tribunal accepted Bullimore’s claims of victimisation against all three, but dismissed other parts of her claims.  She was awarded £7,500 for injury to feelings, but has appealed against this decision.

PWW appealed the tribunal’s decision, asserting that it had been wrong to apply the reverse burden of proof to the victimization claims, which required it to prove that victimization had not taken place.  The EAT dismissed the appeal, finding that the reverse burden of proof should apply to victimisation claims under the SDA.

This decision indicates the difficulties employers can face when providing references, and lends credence to the suggestion that references provided should go no further than confirming name, length of service, position and date of departure.