EAT rules withdrawal of job offer after negative verbal reference was disability discrimination

EAT rules withdrawal of job offer after negative verbal reference was disability discrimination

In Pnaiser v NHS England and Coventry City Council, the Employment Appeal Tribunal (EAT) decided that departing from an agreed reference was disability discrimination.

The background

Ms Pnaiser was employed by Coventry City Council. She had significant absences from work during 2010-2013 due to her medical condition, which amounted to a disability under the Equality Act 2010.

In August 2013, she was made redundant by the Council and signed a Settlement Agreement. This included an agreed reference which would be offered to prospective employers.

She was later offered a job with NHS England, subject to satisfactory references. Her former line manager, Ms Tennant, provided the agreed reference. But she also offered to discuss it further with the prospective employer over the phone.

During this conversation, the NHS was informed of Ms Pnaiser’s sickness absences. Ms Tennant also said she thought Ms Pnaiser wouldn’t be able to undertake the new role.

The NHS withdrew Ms Pnaiser’s job offer. Ms Pnaiser brought a disability discrimination claim against the NHS and Coventry City Council.

The Employment Tribunal (ET) dismissed her claim. It argued Ms Pnaiser had failed to prove the link between her former employer’s negative assessment in the phone call and her sickness absence.

Ms Pnaiser appealed the decision. She argued the ET set an 'impermissibly high hurdle' when it required her to show that the only inference which could be drawn from the facts was a discriminatory one.

The EAT’s decision

The EAT allowed Ms Pnaiser’s appeal.

It held that when the disabled job applicant’s offer of employment was withdrawn following a negative verbal reference from their former employer, a tribunal should consider whether sickness absences due to a disability played any part in that negative assessment.

In this case, it was clear they could have done. So discrimination arising from disability had occurred.

What this means for you

This case highlights the dangers to employers and prospective employers when providing and seeking references.

As an employer who has agreed to provide an agreed written reference in a settlement agreement, it would be risky to offer a separate verbal reference that deviates from this.

Prospective employers should also take note of the risks involved in withdrawing job offers on the basis of information given in references.

Source: BAILII

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