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Nothing Nice to Say – Say Nothing At All?

The Employment Appeal Tribunal (EAT) has overturned the findings of the Employment Tribunal (ET) following a claim for disability discrimination in relation to a negative reference received from a previous employer to a prospective employer.

Pnaiser v NHS England and Coventry City Council

Ms Pnaiser commenced employment with Coventry NHS Primary Care Trust (the Council) as a Lifestyle Risk Management Services Implementation Manager on 1 July 2010. As a result of a medical condition which rendered her disabled within the meaning of the Equality Act 2010, Ms Pnaiser had a high level of absence from work. She also regularly needed to work from home. Ms Pnaiser’s employment with the Council terminated on 31 March 2013 by reason of redundancy. A settlement agreement was entered into, whereby the Council had agreed to ‘bland’ wording for any reference they were asked to provide. Ms Pnaiser was subsequently offered and accepted a new position with NHS England, conditional upon satisfactory references.

A telephone call took place on 16 September 2013 between a Prof Rashid, on behalf of NHS England and Ruth Tennant, on behalf of the Council. During the call, Ms Tennant told Prof Rashid that the claimant had had significant time off work in her previous role. Prof Rashid went on to discuss the responsibilities the new position would entail and Ms Tennant indicated that she would not recommend Ms Pnaiser for the job, implying that Ms Pnaiser’s level of sickness absence had affected her ability to do her job in her previous role and that the pressure may be too much for her. This was contrary to the settlement agreement.

When the phone call ended, Prof Rashid withdrew Ms Pnaiser’s job offer. Ms Pnaiser brought claims of disability discrimination against both the NHS and the Council. With regards to the NHS, Ms Pnaiser alleged that the withdrawal of her job offer by the NHS was unfavourable treatment because of something arising in consequence of her disability.  In respect of her previous employer – the Council, Ms Pnaiser alleged that the giving of a negative reference directly lead to the withdrawal of the job offer. Ms Pnaiser maintained that this was unfavourable treatment because of something arising in consequence of her disability, as the reason behind her high level of absence was her disability.

During the ET hearing, Ms Tennant denied that the verbal reference she had given Prof Rashid over the phone on the 16 September was wholly negative. However, Ms Tennant did admit to having mentioned significant sickness absences for a condition lasting more than 12 months. Notwithstanding this, Ms Pnaiser’s claims were dismissed by the ET on the basis that she had failed to show that discrimination was the only inference that could be drawn from the treatment.  Consequently the ET said Ms Pnaiser had failed to establish a prima facie discriminatory case. Ms Pnaiser appealed.

The Employment Appeal Tribunal (EAT)

The EAT allowed the appeal, finding that the wrong approach had been taken regarding the burden of proof in relation to the discrimination claim. The ET had set an “impermissibly high hurdle” in requiring Ms Pnaiser to show that the only inference that could be drawn from the facts was that discrimination had occurred, before the burden should shift to the respondents. The correct test was whether Ms Paisner had provided evidence which, absent explanation, the Tribunal could have found discrimination to have occurred.

The EAT found on the facts that the ET could have inferred the “unsuitability for the job” comments were made by Ms Tennant because of Ms Pnaiser’s absences (which were a consequence of her disability). If they had inferred this, the burden would have shifted to the Council and the NHS to show that the absence (or the consequences of Ms Pnaiser’s disability) played no part whatsoever in the reasons why Ms Tennant had made those remarks or why the job offer had been withdrawn.  The EAT found that they could not show this on the facts.

The EAT made findings of unlawful discrimination against both the Council and NHS England.

Comment

This case demonstrates the risks that arise when an employer gives a negative reference or an employer acts upon a negative reference received in relation to a prospective employee. An employer is under no duty to provide a reference for an employee but if one is provided, a duty of care is owed and the employer must ensure that it is true, accurate and fair.  Failure to do so could result in claims from both the ex-employee and/or their new employer.

It is advisable to keep references factual and include a disclaimer setting out the limitations on the writer’s liability.

If you have any queries relating to recruitment or if you have any other employment related queries please do not hesitate to contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.

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