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 anti-discrimination legislation.
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 of contract.
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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