Can the contents of a reference be Disability Discrimination?

29 June 2016

Maxine Orr, Partner, considers a recent case whereby an Employment Appeal Tribunal held that content of a reference amounted to disability discrimination.

Can the contents of a reference be Disability Discrimination?

An employer is not legally obliged to give a reference, however if its choses to do so, it must be accurate and not misleading.  A recent Employment Appeal Tribunal held that content of a reference amounted to disability discrimination.

Mrs Pnaiser, was disabled within the meaning of the Equality Act 2010 and as a result had to take significant periods of absence from her work with NHS Coventry Primary Care Trust, a predecessor organisation to Coventry City Council.  Her employment with the Council was terminated in 2013 by reason of redundancy.  When Mrs Pnaiser was made redundant she signed a settlement agreement, which included an agreed reference.

Ms Pnaiser was then offered a job with NHS England, subject to receipt of satisfactory references.  When Ms Pnaiser’s former employer was contacted to provide a reference, Ms Tennant, who had been the Claimant’s Line Manager, provided the reference that had been agreed as part of the redundancy settlement, together with a covering email offering to discuss the matter further if required. 

Professor Rashid, who was dealing with the recruitment process on behalf of NHS England, subsequently telephoned Ms Tennant.  The exact content of this conversation was disputed; however, the Tribunal at first instance concluded that during this conversation, Ms Tenant had mentioned Ms Pnaiser’s significant sickness absence, had voiced concerns that she may not be suitable for the role and that she (Ms Tennant) would not employ the Claimant in such a capacity.  Following this call, NHS England withdrew the offer of employment.

Ms Pnaiser brought claims of disability discrimination against NHS England (alleging the withdrawal of the job offer was unfavourable treatment, done because of something arising in consequence of her disability) and against Coventry City Council (alleging that the giving of a negative reference, which led to the withdrawal of the job offer, was unfavourable treatment).  The Council accepted that they knew Ms Pnaiser was disabled at the time the reference was given.

The claims were dismissed by the Tribunal.  Ms Pnasier successfully appealed on the ground that the Tribunal had misapplied the burden of proof regulations.

The Employment Appeal Tribunal concluded that the first instance Tribunal had required an “impermissibly high hurdle” of the Claimant, before they would find that the burden of proof shifted to the Respondents ie they applied a test that required Ms Pnaiser to show that the only inference that could be drawn was a discriminatory one.

The Appeal Tribunal held that this approach was incorrect and instead ruled that the Tribunal should have asked itself the following question:

 “...whether the fact that Ms Tennant gave a negative reference…in a conversation where she mentioned the Claimant’s significant absence, and her knowledge of and concerns about the Claimant’s history of significant absences were together sufficient to raise a prima facie case…that absence was (consciously or unconsciously) a reason in Ms Tennant’s mind for giving the negative reference, so that the burden shifted.”  The Appeal Tribunal found that, applying this question, the burden did shift to the Respondents to show that disability played no part in their respective actions.

Neither Respondent was able to provide evidence to show this and therefore Ms Pnaiser had been discriminated against on the grounds of her disability.

Employers should be careful not to give misleading references and should remember that where references have been agreed in advance, these should not be deviated from or contradicted, otherwise they may be leaving themselves vulnerable to a Tribunal claim.

Should you have any queries in relation to the above matter please contact our Employment Team using the Contact Form below or telephone us on 02890434015.


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