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Warning to Employers!

14/10/2010

A recent Employment Appeal Tribunal case established that the provider of a discriminatory reference can be liable for future loss of earnings.

In this particular case an employee, who happened to also be a solicitor, was victimised as a result of a reference obtained from a previous employer. As a consequence of this reference the perspective employer withdraw a job offer. The employee has therefore been discriminated and victimised by both his past employer and also his potential future employer.

Whilst the original Tribunal hearing thought that a claim for loss of future income against the previous employer was not possible, the Appeal Tribunal disagreed because if the future employer had not been motivated by discrimination or victimisation then the employee would have no remedy for loss of earnings.

As a result the Employment Appeals Tribunal suggested that the award of damages be split between the past employer and the perspective future employer to reflect their culpability.

It is therefore important that when employers are drafting and providing references thought is given to what impact such a reference will have on the employee's ability to obtain future employment and also whether it could be said the contents of the reference are discriminatory or an act of victimisation.

Should you have any concerns about the contents of a reference KBL are able to assist with the drafting of such a document.