Verbal reference amounted to disability discrimination

When an employee leaves under a Settlement Agreement, and perhaps in other cases too, the wording of the reference to be given to prospective employers is often agreed and specified. However, prospective employers may become wary when they note that the reference does not answer any of their standard questions. In one such case, the prospective employer proceeded to telephone the previous employer to discuss a job candidate, which resulted in the job offer being withdrawn. The candidate succeeded in a claim of disability-related discrimination against both the old and the prospective employers.

Background

Ms Pnaiser worked for Coventry NHS Primary Care Trust where she had received positive appraisals. During her employment, she had various operations and three significant periods of absence which related to a disability. The last period began in August 2012, and during this absence the employer conducted a redundancy consultation because its services were being transferred to Coventry City Council (“the Council”). Although there was a potential role for her, Ms Pnaiser asked for voluntary redundancy. Her employment was terminated on 31 March 2013 with a settlement agreement which included agreed wording for a reference.

In July 2013, Ms Pnaiser applied for a job at NHS England. She was interviewed by Professor Rashid, who described her as an excellent candidate and offered her the job subject to satisfactory checks and references. Ms Pnaiser’s former line manager, Ms Tennant, had by now transferred to the Council. When asked to fill in a form for a reference, Ms Tennant did not answer the questions on the form but supplied Prof Rashid with the agreed reference wording and offered to discuss the matter further. Prof Rashid telephoned Ms Tennant, and, following their discussion, he withdrew the offer on the basis that he did not feel Ms Pnaiser could fulfil the demands of the role. Ms Pnaiser brought an Employment Tribunal claim against both the Council and NHS England, for discrimination arising from her disability.

Employment Tribunal claim

In the Employment Tribunal (ET) there was some dispute as to what was said between Prof Rashid and Ms Tennant. Ms Tennant asserted that she was unable to comment on Ms Pnaiser’s absence because she did not have her personnel file. She also said she could not comment on her suitability for the role because of Ms Pnaiser’s absence, and because the role was a grade above the role she had had under Ms Tennant. Before the ET, Ms Tennant accepted that she had had no concerns about Ms Pnaiser’s performance, but that ultimately the reference she gave had not been positive.

Prof Rashid, by contrast, alleged that Ms Tennant had said she would not employ Ms Pnaiser in the role once she understood the demands involved. As a result, he withdrew the job offer. From this the ET concluded that there was no discrimination arising from Ms Pnaiser’s disability, because the withdrawal of the offer related to her ability to fulfil the role, not her absence. Ms Pnaiser appealed to the Employment Appeal Tribunal (EAT).

Employment Appeal Tribunal ruling

The EAT allowed Ms Pnaiser’s appeal and substituted a finding of disability discrimination. Once the ET had established that Ms Pnaiser was treated unfavourably, it had to establish whether one of the reasons (not necessarily the only reason) for it in the mind of Ms Tennant, (whether conscious or unconscious), was Ms Pnaiser’s absence. There were facts from which the ET could infer that Ms Tennant’s comments about unsuitability were at least in part related to Ms Pnaiser’s absence, which arose in consequence of her disability. This meant that the ‘burden of proof’ shifted to the Council and NHS England to show that in fact Ms Pnaiser’s absence played no part in the reason why Ms Tennant had said she was unsuitable and why, as a consequence, Prof Rashid withdrew the offer. Neither the Council nor NHS England had demonstrated that her absence played no part, and as a result, Ms Pnaiser succeeded in her discrimination claim.

Lessons for employers

This case is an important reminder to employers of the dangers involved when giving and receiving references, particularly where there is an agreed form of wording under a settlement agreement. Employers need to remember that:

• Departing from agreed wording is very risky, as it is relatively easy to start saying things which are inconsistent or contradictory;
• Particular care must be taken when referring to absences which are or might be connected to a disability;
• What has been said in appraisals and previous performance discussions could be taken into account; comments about unsuitability which are not consistent with performance assessments could lead to inferences of discrimination in certain cases; and
• Discrimination claims can be brought not only by employees but by job applicants, as in this case.

In October 2015, ACAS published new guidance on Recruiting Staff  (along with guidance on staff induction) which lists some of the general points employers need to be aware of when providing references, for example:

• There is no legal obligation to provide a reference, except in certain sectors such as financial services or where there is a particular duty of care;
• Employers can choose to give a basic factual reference referring only to job title, dates of employment and salary;
• Providing no reference or a basic reference for some employees but a full reference for others could give rise to allegations of discrimination;
• Employers should only seek references with the candidate’s permission (especially from the candidate’s current employer); and
• Reference requests should not ask for personal information or conjecture about the candidate.

Giving and receiving references is part of everyday HR practice but it can be a tricky area where timely advice can help to avoid costly mistakes.