Withholding a reference while in the process of a discrimination claim can
lead to a case of victimisation
Handling existing employees who have brought or threatened employment
tribunal claims can be very challenging. Such claims are most likely to be for
sex, race or disability discrimination.
The immediate response of managers may be outrage and anger at the
allegations made. They may also be concerned not to prejudice the outcome of
the tribunal hearing.
It is vital that the managers do not treat the employee less favourably
because he or she has brought the claim. If they do, the employee may simply
add a claim of victimisation to the existing complaint.
At least employers in this difficult position can draw some comfort from the
recent House of Lords decision in Chief Constable of West Yorkshire Police v
Khan, 2001, UKHL 48. Khan had brought a race discrimination claim against the
West Yorkshire police alleging that he was turned down for promotion because of
his Indian racial origin.
Before the claim was heard, Khan applied for a post with a different police
force which sought a reference on him from his current employer. The West
Yorkshire force responded that Khan had a tribunal claim outstanding against it
and felt unable to comment further for fear of prejudicing its defence of the
claim. This prompted Khan to bring a new claim of victimisation for failing to
provide him with a reference.
Ironically, the tribunal refused Khan’s original race discrimination claim,
but upheld his victimisation claim, as did the EAT and the Court of Appeal. The
House of Lords homed in on the question of whether it really was the fact that
Khan had brought a claim against the force which meant the reference was
withheld. The victimisation claim should only succeed if there was this causal
Crucially, their Lordships found that the force had refused to provide a
reference, not because Khan had brought the claim, but because it needed to
protect its position pending the proceedings – it would have laid itself open
to a charge of victimisation, if it put anything remotely unflattering in the
reference. Therefore, Khan failed in his victimisation claim.
Their Lordships added a helpful test of victimisation – would the request
for the reference have been refused if the litigation had been concluded,
whatever its outcome? If it would have been, it would be correct to conclude
that the employer had victimised the employee for bringing a claim.
The court also confirmed that simply to withhold a reference, when one would
otherwise normally be given, was detrimental treatment.
There is an added complication if the employee has left the employment when
the reference request is received. Victimisation claims are the only kind of
sex discrimination claims which can be brought in respect of acts done after
the end of the employment.
But, no employment claims can be brought under the Race Relations Act in
respect of things which happen after the termination date, not even
victimisation claims. There is more protection for sex discrimination because
of the requirements of the Equal Treatment Directive.
Therefore, employers can withhold a reference for a former employee because
he or she has brought a race discrimination claim. But, if they withhold a
reference because the employee brought or threatened a sex discrimination
claim, they could face a successful claim of victimisation.
– Take great care not to treat an employee detrimentally because he or she
has brought or threatened a protected claim against the company
– The same protection extends to colleagues who have given evidence in
relation to proceedings
– Treatment can be detrimental even if there is no financial loss
– Employers will not be expected to take a step which could prejudice them
in the forthcoming proceedings
By Jill Kelly a partner at law firm Thomson Snell and Passmore