Ong v Aberystwyth University: "Irresponsible and retaliatory" references can be costly

Headlines

One of the interesting points examined by the employment tribunal was with regard to the reference provided by Aberystwyth University which stated that the claimant was “in dispute” with them. This resulted in a conditional job offer with Ceredigion Council being withdrawn.

The Tribunal found that this wording was not required to fulfil the respondent’s obligations to provide a fair reference. The fact that the claimant was in dispute with University had no relevance to the claimant’s honesty / integrity, working relationship between colleagues and public, her disciplinary record or reason for leaving.

The statutory test for victimisation is where a person (A) subjects another person (B) to a detriment because either: B has done a protected act, or A believes that B has done , or may do, a protected act. A protected act could be bringing proceedings under the Equality Acy 2010.

The Tribunal found that the University provided the reference because of a protected act, and that the person who provided the reference was aware that a third Tribunal claim had been made. This “retaliatory and irresponsible” reference constituted a detriment, as the inclusion of these words was likely to harm the claimant’s employment prospects, which it inevitably did.

At the remedy hearing, the Tribunal awarded a sum of £154,526.10 for future loss of earnings. It was determined that but for the established act of victimisation the claimant would have commenced her employment with the Council. By the unlawful act of the University the claimant had been denied the opportunity of a new career with much higher earnings than she earned with them.

Key takeaways

When providing references, it is always important to be mindful of regulatory requirements. However, this case provides a useful reminder that the content of a reference needs to be carefully considered, with care taken over the language used and the reasons for using this. It is also tempting to assume that employment risk ends with the employment relationship, however, post employment victimisation claims are prevalent and can be extremely costly to organisations.

Unfavourable reference - judgement

I thought it might be useful to set out the tribunal findings and determinations on remedy on the unfavourable reference point, which are as follows:

Allegation 21

In August 2022, a conditional offer of employment by Ceredigion Council was withdrawn following a bad reference being provided about her by the respondent.

We refer to our findings of fact at paragraphs 237-241. The claimant has made out a prima facie case. We find the inclusion of the words “the claimant was in dispute with the respondent” constituted a detriment. This statement was not required to fulfil the respondent’s obligation to provide a fair reference. The fact the claimant is in dispute with respondent has no relevance to the questions asked about the claimant’s honesty/integrity; working relationship between colleagues and public; disciplinary record; and reason for leaving. The inclusion of these words was likely to harm the claimant’s employment prospects, which it inevitably did.

We also find GC provided this reference because of the protected acts. GC admitted at the time of the reference request he was aware of the protected acts, and that a third Tribunal claim had been made. In evidence CG accepted that with hindsight it was not appropriate to make reference to the dispute with the respondent. He accepted the reference was misleading in the sense, “I did not answer the two questions parts. My intention was to be fair and accurate.” He also said, “I had to answer as fully and reasonable. I did not want them to make the wrong judgment. To leave it blank would leave the University at more risk. “

We find this was a clear reference to the Tribunal claim issued by the claimant. We find the respondent’s conduct was irresponsible and retaliatory. It was no surprise that after this reference, the conditional offer of employment was withdrawn to the claimant’s detriment. We reject CG’s assertion that he was not motivated by the protected acts.

Accordingly, the respondent has failed to discharge this burden to show that the reference was not because of the protected acts.

Accordingly, this allegation has been proven and has been made within the statutory time limit. The Tribunal finds the claimant was victimised and the allegation succeeds.

Remedy

Future Loss of Income

54. As stated above, we found but for the established act of victimisation the claimant would have commenced her employment with the Council. By the unlawful act of the respondent the claimant has been denied the opportunity of a new career with much higher earnings than she earned with the respondent. Given that the aim of compensation for discrimination is to put the claimant as best as money can, in the position she would have been in but for the unlawful act, we determine the claimant is entitled to an amount for future loss of earnings up to her intended retirement age of 75 years. These losses should therefore be assessed as flowing from the act of victimisation.

Accordingly, the total compensation payable by the respondent to the claimant is in the sum of £172,740.15 (net) comprising of the sums; (i) Unfair dismissal - (ii) £3,202.70 Injury to Feelings - £15,011.35 (iii) Future Losses - £154,526.10 Total Award £172,740.15(net)

Injury to Feelings for act of victimisation

49. In assessing an award for injury to feelings, we reminded ourselves that we were required to focus specifically on the impact and effect of the established act of victimisation. We noted what the claimant said about the impact and effect which is continuing as she has been unable to secure new employment. In the circumstances, we did not consider this to be unreasonable. We accept the claimant’s evidence of the impact and effect on her feelings and mental well-being following the withdrawal of the job offer and in particular when she learnt of the contents of the reference supplied. We accept the effect on her feelings as described were significant, given the loss of a new full time job which would have doubled her annual earnings; and the fact that she was left feeling bereft and worthless, financially insecure with an uncertain future. The impact and effect of this act of victimisation is continuing as the claimant confirmed. In assessing an award for injury to feelings we recognise we are required to have regard to the guidelines in Vento, and the recent case of Eddie Stobart Ltd v Graham 2025 EAT14. We also recognise that deciding on the amount of the award is not an exact science. In reaching our decision, we have had regard to the overall picture and the importance of reflecting the value of the sums in everyday life whilst not diminishing the seriousness of the acts of discrimination. We assess the award for injury to feelings should fall within the middle Vento band, and that the appropriate figure should be £12,000. As required, we stood back and looked at the total amount and are satisfied this was a just and equitable award within the appropriate Vento Band. This sum is liable for interest from the date of the established act of victimisation (i.e 22 September 2022 - date of the reference) to 12 November 2025 (i.e the date of assessment made by the Tribunal) .The interest period is therefore 1145 days. The assessed interest at 8% is calculated at £2.63 per day x 1145 days, which amounts to £3,011.35. 53. Accordingly, the total award payable by the respondent to the claimant for injury to feelings including interest is £15,011.35.