A firm that ‘gratuitously’ mentioned a solicitor’s previous discrimination claim against it when providing an employment reference to another firm has lost an appeal in the Employment Appeal Tribunal.

Pothecary Witham Weld (PWW) lost the appeal in a case that has established that the reverse burden of proof applies to victimisation claims under the Sex Discrimination Act 1975.

The solicitor, Susan Bullimore, worked as a salaried partner in partner Peter Hawthorne’s dispute resolution department at Witham Weld, now PWW.

Bullimore experienced a ‘personality clash’ with the firm’s practice manager, and there was tension over whether she would be admitted to the equity partnership. She resigned in 2004, claiming unfair constructive dismissal and sex discrimination. The firm settled the claim, agreeing to provide a reference to future employers which was ‘consistent with those already provided’.

In 2004, Bullimore joined a new firm and Hawthorne gave her a ‘bland’ reference. During that year, in what the EAT termed a ‘bizarre incident’, Bullimore’s father crashed into Hawthorne’s car, which was parked outside his house and ended up in his garden, causing considerable damage. The EAT noted Bullimore has always maintained this was ‘pure coincidence’.

In 2008, she applied for a job at City firm Sebastians. This time, the judgment said Hawthorne’s reference referred to her ‘poor relationship with the partners and the practice director’, and ‘gratuitously’ referred to her employment tribunal proceedings, as well as describing her as ‘inflexible in her opinions’.

Following the reference, Sebastians insisted that Bullimore should undergo a ‘probationary period’, and after some discussion the offer did not proceed.

Bullimore wrote to Hawthorne in protest at his reference, which resulted in a ‘heated’ meeting in which the employment tribunal found both parties behaved ‘inappropriately’. Bullimore sued PWW, Hawthorne and Sebastians. The tribunal accepted her claims of victimisation against all three, but dismissed other claims. Bullimore was awarded £7,500 for injury to feelings at a subsequent remedies hearing. She has appealed against this award. The EAT said Sebastians had settled the matter and formed part of the appeal in name only. .

PWW appealed the tribunal’s decision, asserting that it had been wrong to apply the reverse burden of proof to the victimisation claims, which required it to prove that victimisation had not taken place. The EAT dismissed the appeal, finding that the reverse burden of proof should apply to victimisation claims under the Sex Discrimination Act, even though it did not apply to the same types of claim under the Race Relations Act 1976.

Hawthorne said: ‘We accept the EAT’s decision. The case illustrates the difficulty of safely providing any reference more detailed than just name, length of service, position and date of departure.’