Introduction

The case of Bullimore v. Pothecary Witham Weld Solicitors & Anor ([2011] IRLR 18) adjudicated by the United Kingdom Employment Appeal Tribunal on September 21, 2010, marks a significant precedent in employment discrimination law. The appellant, a solicitor, alleged victimisation under section 20A of the Sex Discrimination Act 1975 by her former employer, Mr. Peter Hawthorne of Witham Weld ("WW"). The core issue revolved around whether a negative employment reference, influenced by the appellant's prior sex discrimination claims, constituted unlawful victimisation.

This commentary delves into the background of the case, summarizes the Tribunal's findings, analyzes the judicial reasoning and precedents cited, explores the implications for future legal scenarios, clarifies complex legal terminologies, and concludes with the broader significance of the judgment.

Summary of the Judgment

On January 6, 2009, an Employment Tribunal in London Central determined that the appellant had been victimised in violation of section 20A of the Sex Discrimination Act 1975. The primary act of victimisation was identified as the provision of a detrimental employment reference by Mr. Hawthorne, a partner at Pothecary Witham Weld Solicitors ("PWW"), to a prospective employer, Sebastians. The reference highlighted the appellant's strained relationships within WW, referred to her resignation and subsequent tribunal proceedings, and noted her occasional inflexibility in opinions.

The Tribunal found that Mr. Hawthorne's reference was intentionally damaging and influenced by the appellant's protected act of initiating sex discrimination proceedings. Consequently, Sebastians modified their employment offer to include a probationary period, leading to the withdrawal of the offer. This action was deemed unlawful victimisation, prompting the Tribunal to award the appellant £7,500 for injury to her feelings. The appellant appealed, contesting the compensation amount and the absence of an award for loss of earnings. The Employment Appeal Tribunal upheld the decision regarding the injury to feelings but remitted the loss of earnings claim back to the Employment Tribunal for reconsideration.

Analysis

Precedents Cited

The Tribunal referenced several pivotal cases to underpin its decision. Notably:

• Jameson v Central Electricity Generating Board [2000] 1 AC 455: Addressing the issue of concurrent torts and causation.
• McGregor on Damages: Specifically paragraphs 6-055 and 6-059, discussing "novus actus interveniens" in defamation cases.
• Vento v Chief Constable of West Yorkshire Police [2003] ICR 318: Establishing guidelines for compensation related to injury to feelings.
• Spencer v Wincanton Holdings Ltd [2009] EWCA Civ 1404: Referenced for the interpretation of Lord Nicholls' speech on causation and remoteness of damage.

These precedents collectively influence the court’s approach to causation, victimisation, and the assessment of damages in discrimination cases.

Legal Reasoning

The Tribunal's legal reasoning centered on whether the negative reference provided by Mr. Hawthorne constituted unlawful victimisation under section 20A of the Sex Discrimination Act 1975. The key points of reasoning included:

1. Intentionality of the Detriment: The Tribunal opined that Mr. Hawthorne's reference was intentionally damaging, aiming to disadvantage the appellant due to her prior discrimination claim.
2. Connection to Protected Act: The negative reference was directly linked to the appellant's protected act of litigating sexism, fulfilling the criteria for victimisation.
3. Impact on Prospective Employment: The qualified nature of the reference directly influenced Sebastians' decision to alter and eventually withdraw their job offer, demonstrating a tangible detriment.
4. Causation and Remoteness: While the Tribunal initially deemed Sebastians' actions as a novus actus interveniens, the Employment Appeal Tribunal disagreed, asserting that the withdrawal was a foreseeable consequence of the negative reference.

The Tribunal's approach emphasized the direct link between the negative reference and the subsequent loss of employment opportunity, thereby establishing a clear case of victimisation.

Impact

This judgment reinforces the legal protection against victimisation in employment contexts, particularly concerning the provision of references. It emphasizes that negative references influenced by protected acts like discrimination claims can constitute unlawful victimisation, warranting compensation. The decision also clarifies the application of causation principles in tortious acts related to employment discrimination, asserting that subsequent wrongful acts by third parties (like Sebastians) do not necessarily sever the causal chain if the original act (negative reference) has a direct and foreseeable impact.

Future cases will likely cite this judgment when addressing the responsibilities of employers in providing fair and non-discriminatory references, and when assessing the scope of victimisation in employment disputes.

Complex Concepts Simplified

Victimisation

Under employment law, victimisation occurs when an individual is treated unfavorably because they have made or intend to make a protected disclosure, such as filing a discrimination claim. In this case, the appellant was victimised through a negative reference linked to her prior sex discrimination claim.

Novus Actus Interveniens

This Latin term refers to a new intervening act that breaks the chain of causation between the defendant's original wrongful act and the plaintiff's damage, potentially absolving the defendant of liability. The Employment Appeal Tribunal rejected the Tribunal's assertion that Sebastians' withdrawal was a novus actus interveniens, maintaining that the original act (negative reference) was sufficiently causative.

Section 20A of the Sex Discrimination Act 1975

This section specifically addresses victimisation, making it unlawful for an employer to subject an employee to detriment because they have made a protected disclosure, such as raising a sex discrimination claim.

Injury to Feelings

This compensation covers the non-pecuniary harm suffered by an individual due to discriminatory treatment. The "Vento bands" provide guidelines on the ranges of compensation based on the severity of emotional distress.

Conclusion

The Bullimore v. Pothecary Witham Weld Solicitors & Anor case serves as a crucial benchmark in delineating the boundaries of victimisation within employment law. By establishing that negative references motivated by prior discrimination claims can amount to unlawful victimisation, the judgment underscores the imperative for employers to exercise impartiality and fairness in their reference practices. Moreover, the reaffirmation against the novus actus interveniens doctrine in this context ensures that employers remain accountable for the direct consequences of their actions on an individual's employment prospects.

This decision not only provides a remedy for the appellant but also acts as a deterrent against discriminatory practices in employment settings. It reinforces the legal safeguards designed to protect employees from retribution, thereby promoting a more equitable and just workplace environment.