Veitch Penny LLP - Exeter | Crediton, Devon

Case

Hobson v Hackney Borough Council

Issues

1. Employment - Discrimination
2. References; sex discrimination and language of reference;
3. Stereo-typical view of women

Facts

The Claimant was employed by the Council as an agency social worker and in November 1998 she was offered a permanent position with the Council subject to references and police checks. Her Supervisor at the time provided a reference in support of her application, but this did not satisfy the Council and the offer of the position was withdrawn on the strength of his reference.

The Claimant took the view that he had been influential on the decision making regarding the job and accordingly filed her claim alleging sex discrimination based partly on the contents of the reference.

The Industrial Tribunal found that had the reference been changed so as to take out any reference to her being a woman, a reasonable person would not have considered that the reference was for a female. The Tribunal did not therefore find that the reference was discriminatory and dismissed the Claim.

The EAT also dismissed her appeal on the grounds that there was no argument or error of law but she appealed to the Court of Appeal on the grounds that the Tribunal had erred in law by failing to consider whether the reference was justified in its terms or whether it was unfair.

Decision

The Court held that she had problems with her Appeal in that the argument she was now putting that the Tribunal had failed to consider whether the reference was justified was not the one which she had advanced at the time of the original hearing.

Furthermore, her argument before the Tribunal was that sex discrimination had been established by the gender basis of the reference on which the Tribunal was asked to infer discrimination from its language. The Tribunal had to consider whether the reference as worded indicated a stereo-typical view of a woman and was entitled to come to its decision on the basis of the language of the reference.

There was no error of law in the decision reached by the Tribunal and it was a matter of reaction or impression, and not possible to say that the Tribunal's reasoning was inadequate.

The Appeal was therefore dismissed.

Comments

This case illustrates the situation where the Applicant's claim got off on the wrong foot initially in that the Tribunal was not asked to consider whether the reference was justified or whether it was unfair in its terms, but rather that the language of the reference was discriminatory in character.

It does highlight the need to be ever vigilant however on the structure and content of references and for procedures to be in place and circulated to those who may be requested to give such references in these cases.