Representation:

1. at a general level
   for the purpose of deciding whether an employer's refusal to provide a reference for an employee who is suing the employer for race discrimination is itself unlawful victimisation, it is legitimate to take into account that "they are not only employer and employee but also adversaries in litigation. The existence of that adversarial relationship may reasonably cause the employer to behave in a way which treats the employee less favourably than someone who had not commenced such proceedings".

2. at a technical level
   the choice of a comparator for the purposes of the victimisation provisions of the Race and Sex Discrimination legislation should be an employee who is in a position the same in all respects as the claimant save only that this hypothetical other employee had not done the protected act.

For relevant general notes see Racial discrimination/victimisation and/or Sex discrimination/victimisation and/or References for former employees and/or Whistleblowing/a general note . See also notes on Inland Revenue & Cleave v Morgan EAT 2002 IRLR 776, EAT.