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Employment Law

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Veale Wasborough Vizards , 18 DEC 2015

Be careful what you say - how a negative verbal reference can lead to a disability discrimination claim

Be careful what you say - how a negative verbal reference can lead to a disability discrimination claim
Amaya Floyd
Associate, Veale Wasbrough Vizards

The Employment Appeal Tribunal (EAT) has decided that disability discrimination arose when a job offer was withdrawn after a former employer gave a negative verbal reference.

In Pnaiser v NHS England and Coventry City Council, Ms Pnaiser was disabled within the meaning of the Equality Act 2010. Her employment came to an end by reason of redundancy, and was terminated by way of a settlement agreement, which included an agreed reference.

Ms Pnaiser subsequently applied for a job elsewhere, which was offered to her subject to satisfactory references. The settlement agreement reference was provided by her former employer, but a telephone conversation was also offered if the prospective employer wanted further information.

That telephone conversation took place, and the prospective employer was informed that Ms Pnaiser had had a significant amount of time off work in her previous employment for a condition lasting more than 12 months, and Ms Pnaiser was not recommended for the new role.

The job offer was withdrawn following that telephone conversation and Ms Pnaiser brought a claim against both her former and prospective employers for discrimination arising from disability.

The Employment Tribunal (ET) dismissed the claim on the basis that a case of discrimination had not been established.

Ms Pnaiser appealed, arguing that the ET set an 'impermissably high hurdle' by requiring her to show that the only inference that could be drawn from the facts is that discrimination occurred.

Appeal decision

The EAT allowed Ms Pnaiser's appeal and found that the tribunal should have asked whether it could be inferred from the facts that the negative reference was given at least partly because of Ms Pnaiser's previous absences (which were disability related). Once this was established, the burden shifted to the respondent to show that the absences were not a reason why the job offer was withdrawn.

The EAT decided that it was clear from the facts that the unfavourable reference was at least partly as a result of the sickness absence, which in turn was a consequence of the disability, and therefore discrimination arising from disability had occurred.

Best practice

This case is a good reminder to employers to take caution when providing a reference. Where a written reference is agreed as part of a settlement agreement, it would be risky for an employer to provide a separate verbal reference which contradicts the agreed written reference. Employers should also note that telephone conversations can constitute verbal references.

Prospective employers should also be aware of the risks involved in withdrawing a job offer on the basis of information as part of a reference, and be aware of unconscious bias in these situations.

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