Bullimore v. Pothecary Witham Weld Solicitors & Anor

Loss caused by a prospective employer’s unlawful response to a damaging discriminatory reference is not necessarily too remote from the reference-giver’s wrongdoing. A subsequent tortious act does not automatically constitute a novus actus interveniens. Remoteness requires an evaluative judgment about whether responsibility for the consequence should fairly extend to the earlier tortfeasor. Withdrawal of employment following a damaging reference will ordinarily be a foreseeable and direct consequence of providing the reference. Compensation for injury to feelings should reflect the value of money at the date of assessment, but tribunals need not carry out an express inflation calculation when applying the Vento guidelines.

The appellant had previously worked for Witham Weld, later merged into Pothecary Witham Weld Solicitors. After she brought sex discrimination proceedings against her former employer, a partner gave an adverse reference to Sebastians, a prospective employer. Sebastians changed the employment terms after learning of the proceedings and the employment did not proceed. The Employment Tribunal held that the reference-giver, the firm and Sebastians had victimised the appellant, but awarded compensation only for injury to feelings.

The liability decision had previously been upheld by the Employment Appeal Tribunal: [2010] ICR 1009. On the remedy appeal, the central issues were whether the loss of earnings was too remote from the reference and whether the £7,500 injury-to-feelings award was legally defective because the Tribunal had not expressly uprated the Vento guidelines for inflation.

1. Loss of earnings. The appeal was allowed to the extent that the claim for loss of earnings was remitted to the Employment Tribunal. Compensation in discrimination cases follows the common-law approach to tort damages, as stated in Essa v Laing Ltd. The relevant torts were concurrent because both contributed to the loss, although consecutive in time.
2. The Tribunal wrongly treated Sebastians’ conduct as breaking the causal chain. The subsequent tortfeasor’s free choice does not automatically break causation. Nor does the fact that the subsequent conduct was wrongful or unlawful. The modern approach to remoteness requires an evaluative judgment, including whether the consequence was direct, natural or foreseeable, and ultimately whether responsibility should fairly extend to the earlier tortfeasor. The reasoning in Kuwait Airways Corporation v Iraq Airways Company, Rahman v Arearose Ltd and McManus v Beckham was applied.
3. Withdrawal of the job offer was evidently foreseeable. The purpose of a reference is to influence the prospective employer’s decision, and a damaging reference is liable to produce precisely that result. The reference-giver was therefore potentially liable for the resulting loss, even without proof of a positive intention that the offer should be withdrawn.
4. The Tribunal’s reliance, if any, on Vicars v Wilcocks was erroneous. Its ratio depended on a now-discredited doctrine. The issue of apportionment between the reference-givers and Sebastians was left subject to the parties’ agreement, although the Tribunal expressed doubt whether apportionment was correct in principle where the loss was indivisible.
5. Injury to feelings. The appeal against the £7,500 award was dismissed. Tribunals should assess non-pecuniary compensation in current money, but they need not expressly uprate earlier guideline figures. Da’Bell v National Society for Prevention of Cruelty to Children was treated as a useful reminder rather than an inflexible requirement. The award was not shown to result from an unthinking application of a band boundary.
6. The Tribunal’s reference to the appellant’s conduct concerned only distress arising from the grievance meeting, on which she no longer relied. It did not establish an impermissible reduction of compensation for injury to feelings.

The loss-of-earnings issue was remitted to the same Tribunal unless that was impracticable.

• Employment Appeal Tribunal: The earlier liability decision was upheld: [2010] ICR 1009.
• Employment Tribunal: The Tribunal awarded £7,500 plus interest for injury to feelings and made no award for loss of earnings.
• Employment Appeal Tribunal: The remedy appeal was allowed on loss of earnings and remitted to the same Tribunal. The appeal concerning injury to feelings was dismissed.