Most Read Contributor in Hong Kong, September 2016
Written by Duncan Abate (Partner)
It is already established that in certain industries there is an
implied term that an employer will provide a reference for a former
employee. In such situations, failure to provide a reference
may be a breach of contract by the employer.
However, the Sex Discrimination Ordinance, Disability
Discrimination Ordinance and Family Status Discrimination Ordinance
(to the extent they apply to the employment field) only apply to
employees and job applicants, not to former employees.
Therefore, due to the fact that a former employee is no longer an
employee, there was a reasonable argument that such
anti-discrimination legislation did not apply to discrimination
following termination of employment and, therefore, did not apply
to a failure to provide a reference.
If this argument were correct then an employer may refuse to
provide a reference due to an employee's disability, sex or
family status and could not be challenged under the relevance
The recent English cases of Relaxion Group plc v
Rhys-Harper; D'Souza v London Borough of Lambeth; Jones v 3M
Healthcare Ltd (which were decided by the House of Lords
together) have clarified the position. Unsurprisingly the
House of Lords decided that a former employee should remain
afforded the protection of the relevant anti-discrimination
legislation notwithstanding termination of employment.
However, such protection only lasted for so long as some part of
the employer/employee relationship continued and in this respect
the court should consider whether the conduct complained of has a
sufficiently close connection with the employment.
Impact on references
The failure to provide a reference will almost always have a
close connection with the employment and, therefore, is capable of
falling within the anti-discrimination legislation. So, where
a former employee has a reasonable expectation of being given a
reference and no reference is provided due to the sex, disability
or family status of the former employee that person can now
complain to the EOC as well as possibly bringing a claim for breach
Discrimination claims are tiresome to deal with and costly to
settle. Employers should take care to review their policy on
giving references as well as anti-discrimination policies.
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Stokes & Master at the date written first above. All rights
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