Bullimore v Pothecary Witham Weld, Solicitors & Hawthorne

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Testimonials

Richard has worked on some complex cases. I can honestly say that his eagerness to succeed is matched with his willingness to listen and his calm yet consistent approach to confront issues head-on. And above all else, unlike solicitors we have dealt with before, he will go to vast lengths to understand each case before making any assertion. Without hesitation I recommend GD People.

Peter Hetherington (Operations Director 1^st Care Ltd, Midlands)

We needed help to guide us though our redundancy process and clearly the whole matter had to be handled sensitively. On recommendation, we chose GD People to help co-ordinate and communicate this to our workforce and they did a sterling job for us. We would have no hesitation in recommending their services based upon our own experience to-date.

Darren Timson, Landcare Operations Director, Stockport.

Bullimore v Pothecary Witham Weld, Solicitors & Hawthorne

The Claimant was a solicitor in a law firm. Following the termination of her employment she brought proceedings in the employment tribunal against that firm, alleging both unfair dismissal and sex discrimination. The proceedings were eventually settled.

The Claimant subsequently obtained employment with another solicitor's firm subject to references. Her formerline manager was given as a referee but he gave a negative reference. He referred to her poor relationship with the partners and the practice director, gratuitously mentioned that she had brought employment tribunal proceedings against her former employer and said she could on occasion be inflexible as to her opinions.

The new employer investigated further, including requesting a copy of the Claimant's tribunal pleadings, and decided to alter the terms of the offer to include a long probation period. The Claimant was unhappy with this and the job offer was eventually withdrawn. The Claimant brought further proceedings against both her old employer and the new employer.

The Tribunal found that the giving of a reference in these terms constituted a detriment and that the line manager had been significantly influenced in what he chose to say by the fact that the Claimant had brought sex discrimination proceedings against her former employer. The giving of the reference was thus an act of unlawful discrimination by way of victimisation.

In addition the tribunal held that the new employer had been specifically influenced in their decision to withdraw their job offer by the information that the Claimant had brought sex discrimination proceedings against her former employer. This constituted an act of a kind specified in section 4 (1) (a) of the 1975 Act (a "protected act"). Accordingly it held that the withdrawal constituted unlawful discrimination, by way of victimisation. Quantum was not decided at the hearing and whilst waiting for the remedy hearing the new employer decided to settle for £42,500.

That left only the old employer and line manager as parties to the claim. At the remedy hearing an award of £7500 was made to the Claimant. The award was for injury to feelings and not loss of wages. The Claimant appealed on 2 grounds. 1. that the award should have included loss of wages and 2. the injury to feelings award should have been higher.

In relation to the former the EAT said, "We have here a case in which the Appellant has suffered loss as a result of the combination of two wrongful acts – the Respondents' in giving (for a proscribed reason) the damaging reference, and Sebastians (new employer) in (likewise, for a proscribed reason) withdrawing the offer following receipt of that reference. The torts in question can properly be described as "concurrent" in the sense that they both contributed to the occurrence of the loss, but it is also important to the analysis that they are consecutive, the Respondents' act being earlier in time and thus necessarily further up "the chain of causation." The modern approach is to seek (at least so far as possible - the phrase "breaking the chain of causation" seems ineradicable) to confine the language of causation to the purely factual issue of whether the damage would have occurred "but for" the defendant's wrongful act."

It seemed to the EAt that "as a matter of policy and fairness the Respondents ought plainly to be liable here. When an adverse reference, given for an illegitimate reason, leads to an employer deciding not to make, or to withdraw, an offer to a candidate it is hard to see why that consequence should be regarded as too remote to attract compensation from the giver of the reference: so far from being remote,it seems to us both close and direct. As the case-law shows, the giving of damaging references is a not uncommon form of victimisation (or alleged victimisation). It would be most unsatisfactory if a claimant who lost the opportunity of employment as the result of such a reference were unable to recover substantial damages from his former employer. A remedy against the recipient of the reference will by no means always be available. It was only so in the present case because part of the damaging information supplied took the form of information about the earlier proceedings, which constituted a protected act, and Sebastians were held to have been motivated by that specific information: it would have been otherwise if Mr Hawthorne had given an equally damaging reference but not directly referred to any protected act."

As a result the case was referred back to the tribunal to assess an addition to the award of loss of wages.

The appeal against the quantum of the award for injury to feeling was however dismissed.

Interestingly the EAT suggested that the damages should be apportionment between the provider and recipient of the reference to reflect their culpability. cAn exercise which involves, essentially, an assessment of the parties' respective culpability and their degree of responsibility for the loss suffered was perfectly practicable.

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Case Law Update

Morgan v The Welsh Rugby Union

This is a useful case for reviewing some of the issues you need to consider when engaging on a redundancy procedure in its various forms.

In this particular case, the Claimant and a colleague were made redundant and their roles were replaced by one amalgamated wider role. Both men were interviewed for the new role but despite the fact that the Claimant met the new job description and the colleague did not, the colleague was given the job.

The Claimant's argument was based on the case of Williams v Compair Maxam [1982] IRLR 83. Williams sets out principles of good industrial relations to be observed in redundancy cases where the employees are represented by an independent union recognised by the employer. The EAT when outlining these principles was clear that they should not be taken as immutable or principals of law. Nonetheless, the principals have long been used as a benchmark for managing redundancy situations. They read as follow:

Conteh v Parking Partners Ltd

The Claimant was a black African female born in Sierra Leone. She was employed by the Respondent employer from 16 February 2009 as a customer car park attendant working in a car park at St George's Residential Development. The employer was a company which carried on business providing car parking facilities.

The marketing staff for St George's worked at the premises and were issued with tickets as they entered the car park. To leave the tickets had to be validated and on occasion the validation machine was broken. The Claimant had standing orders not to allow anyone to leave if their ticket was not validated. On the 14th March 2009, the Claimant exercised this standing order and refused to allow a member of the marketing staff to leave. The following day another member of the marketing staff came into the Claimant's office and was alleged to have said that "The fucking bloody machines are not working and who is paying your fucking bloody wages?", pointed to the sign on the wall and answered the question by saying, "St George's, you fucking stupid black African bitch". She went on insulting the Claimant, eventually letting herself out and slamming the door.

Lisboa v Realpubs

Over four decades the Coleherne Public House in Earls Court, London developed a national and international reputation as London's first 'gay pub'. Realpubs bought the premises. Realpubs own and operate gastropubs and their business model is to buy failing pubs and reposition them as gastropubs, offering good food and drink to all sections of the community.

In September 2008 when Realpubs acquired the Coleherne it was then in decline. The premises underwent refurbishment and were re-launched as the Pembroke Arms, opening to the public on 5 December 2008.

The Claimant in this case was an openly gay man. His working life has been spent in the hospitality industry. Between 2003 and late 2008 he worked as General Manager of a gastropub in Ealing. In late November 2008 he was interviewed by Realpubs' Operational Manager for a post in the Pembroke Arms. Following that interview the Claimant was offered and accepted a position as Assistant Manager at the Pembroke Arms. His employment commenced on 1 December 2008; it ended with his resignation on 11 January 2009.

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