Previous Article Next Article Comments are closed. OpinionOn 1 Feb 2000 in Personnel Today Related posts:No related photos. Stephen Levinson, head of the employment and pensions department of City lawfirm Paisner & Co, gives his view of some topical issuesExpensive silence Can you really get £200,000 if you are refused a reference? The press hasrecently been much exercised by the story of Ms Coote, the former bingo-hallmanager, and the headlines have concentrated on the money. The fact that herjob lasted all of 10 months and that her annual salary was £20,000 a year hashelped to pile on the indignation. Most of the recent fuss was based on an over-the-top press release from theEqual Opportunities Commission. As well as stressing the total value of theaward (without detail) the press release claimed that, in future, employerswould be under a legal obligation to provide references to their formeremployees. In truth this was what lawyers call an interesting case, which is usuallydire news for everyone else. The essential facts were that the lady brought asex discrimination case after the termination of her employment: the claim wassettled. Later no references were given by the employer despite several requests.This prompted a claim of victimisation – that is, an allegation that the reasonthat the references were not given was the fact that the sex discriminationcase had been brought. But, said the ingenious employer, the lady was a formeremployee and the law only protects existing employees from discrimination. Niceone, said the English tribunal and held for the employer. Off to Europe went the employee where the ECJ cried foul on the employer andsaid that a purposive application of the Equal Treatment Directive (which theSex Discrimination Act implements) requires former employees who suffer suchdetriment to be protected if a mockery is not to be made of the law. So backeveryone came to the employment tribunal and the result, five years after thedismissal, was the headline award. The most absurd aspect is not the amount of the award, which may well havebeen exaggerated. No, the real nonsense is the discrepancy that now existsbetween claims based on sex and those based on race. There is, as yet, noEuropean directive on racial discrimination to which the those relying on the RaceRelations Act could refer in parallel circumstances. This fact prevents thesame purposive approach being taken. Ironically, because English race law ismore progressive than European law in this respect, our minority communitiesare worse off. What about that claim that there is an obligation to give references? Thegeneral rule is that no obligation exists. The regulated financial sector isone exception to this rule. In fact it has been common for employers to react to being sued (for anyreason) by refusing to give a reference. They will be at risk (and always havebeen) if it can be established that the reason for this retaliation is acomplaint of discrimination or one of the other areas of law which preventsvictimisation. But by far the most common reasons for dismissal are conduct andcapability, where there is no such protection. In such cases there is no legalobligation to give a reference. Stress Tax We know the Inland Revenue is not really mean and grasping but they do knowhow to try our patience. Some employers have been reacting to all of thepublicity about workplace stress by providing counselling to their staff. Verylaudable too you might think. What says the Chancellor? He smells a benefit in kind which is taxable inthe hands of the employee. With his usual gift for positive PR the tax mandistinguishes between stress caused by work alone (no tax) and stress caused byother reasons (taxable). Imagine the stress caused if you have to make thatsort of enquiry every time you try to help your employees by providingcounselling . The Revenue’s solution is to say that if the benefit was generally availableto all employees it will be exempt. So you spend more and they get less? Whowas it that said the law is a ass? Test of fairness The judicial attack on the band of reasonable responses test in unfairdismissal cases continues. In Scotland Lord Johnson, the president of theScottish EAT, said in Wilson v Ethicon, 2000, IRLR 4 that he wanted “toendorse completely” the observations of Mr Justice Morison in Haddon v Vanden Berg Foods,1999, IRLR 672 encouraging tribunals to concentrate of the testof fairness without the baggage of precedent clouding their vision. Some might think this a radical view for a lawyer. A third president to getin on the act is the learned head of employment tribunals in England and Waleswho has written to all tribunal chairmen drawing their attention to Haddon. Wecan expect a lot of grief from all of this and a great deal of inconsistencyaround the country. Well, who said we were here to enjoy ourselves?