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The answer  is yes, read on…….

In the case of Pothecary Witham Weld v Bullimore (2010) the an Employment Appeals Tribunal agreed that a solicitor, had been victimised, contrary to section 20A of the Sex Discrimination Act 1975 by her former employer but did a subsequent employer also fall to be liable?

The former employee worked for WW (which subsequently merged to form PWW). The department in which she worked was managed by Mr Hawthorne. Following the termination of her employment she brought proceedings in the employment tribunal against the employer, alleging both unfair dismissal and sex discrimination. Those proceedings were eventually settled.

The appellant secured a job with a firm called Carter Bells but was made redundant.

In March 2008 a new firm,  Sebastians, offered the Appellant a job, subject to satisfactory references.

On the basis of a reference from and a telephone call made with Mr Hawthorne, that included information about the tribunal proceedings, Sebastians decided to change the offer of employment already made to the Appellant so as to incorporate a six months’ probationary period during which she would be liable to dismissal on one month’s notice.

The issue before the court was, did Sebastians ” cause in law” (remoteness) the injury or suffering that required a remedy?  In essence this means whether the consequences in question were “direct” or “natural” or foreseeable result of the action and how far, in the circumstances of the particular case, the responsibility of the employer [tortfeasor] ought fairly to extend.  Perhaps unsurprisingly, the EAT found that:

  • Our conclusion does not depend on Mr Hawthorne having positively intended that Sebastians should withdraw their offer to the Appellant: it is enough that (with the relevant proscribed motivation) he gave a reference which was liable to have that effect.
  • In a foot note the judgement reads “that Sebastians must have appreciated that the withdrawal of the job offer would cause the Appellant loss: that is self-evident. But there is no reason whatever – and nothing in the findings – to suggest that they had any animus against her: they were simply pursuing what they thought to be their best interests in distancing themselves from someone who they now thought (partly at least because of their knowledge of the protected act) was likely to be trouble.

Need advice on this subject? I thank Paul Brill, Employment Law Specialist with Rothera Dowson for bringing this case to my attention.

Further reading:

How liability may be extended through the principles of causation see Home Office v Dorset Yacht Company

Sex Discrimination Act 1975 20A, Relationships which have come to an end:

(1)This section applies where—

  • (a)there has been a relevant relationship between a woman and another person (“the relevant person”), and
  • (b)the relationship has come to an end (whether before or after the commencement of this section).

(2)In this section, a “relevant relationship” is a relationship during the course of which an act of discrimination by one party to the relationship against the other party to it is unlawful under any preceding provision of this Part.

(3)It is unlawful for the relevant person to discriminate against the woman by subjecting her to a detriment where the discrimination arises out of and is closely connected to the relevant relationship.

(4)It is unlawful for the relevant person to subject a woman to harassment where that treatment arises out of or is closely connected to the relevant relationship.

 

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