The Employment Appeal Tribunal (EAT) has held in South Warwickshire NHS Foundation Trust v (1) Lee, (2) Staffordshire & Stoke on Trent Partnership NHS Trust, (3) Mason that the tribunal had been entitled to find that the prospective employer was liable for unfavourable treatment arising from disability when it withdrew a job offer. The offer was withdrawn following the receipt of two unsatisfactory references, one of which was unduly negative and focused on the claimant's health issues and absences from work.
The claimant was a nurse working for Staffordshire & Stoke on Trent Partnership NHS Trust (Staffordshire & Stoke on Trent) who suffered from knee arthritis which made her a disabled person. This led to various issues at work, including her wish to reduce her hours, absences from work and difficulties in carrying out her role. She obtained a job with a private sector healthcare provider, Ark, as a Senior Nurse Care Manager. Soon afterwards she applied for a role which involved managing a district nursing team with South Warwickshire NHS Foundation Trust (South Warwickshire). References were sought from Staffordshire & Stoke on Trent (a negative reference was provided which focussed on the claimant's health issues and her absence from work) and Ark (which expressed reservations about her competency to follow processes and the claimant's lack of leadership skills). On the basis of these, which were deemed unsatisfactory, the job offer was withdrawn and the claimant brought a claim for discrimination arising from disability against Staffordshire & Stoke on Trent and Mrs Mason (the individual who had provided the reference) and also against South Warwickshire for withdrawing the job offer. At first instance the tribunal upheld the claimant's claims.
When it came to determining liability the EAT concluded that the tribunal had been entitled to have regard to the fact that the reference from the claimant's NHS employer had influenced the decision to withdraw the job offer. However, the EAT did concede that on remission the tribunal might find that the information in the Ark reference was such that ultimately South Warwickshire would have felt unable to employ the claimant in the position in issue. If this was the case it "might be fatal for the claimant at the remedy stage".
Take note: If a prospective employer receives an unsatisfactory reference and wants to withdraw an offer it must do so with caution. Before withdrawing the offer it should analyse whether any adverse comments in a reference may reIate to a disability, and ensure that any such comments are followed up with the referee. Reasonable adjustments should also be considered and, if the job offer is withdrawn, the (non-discriminatory!) reasons for coming to this decision should be set out clearly.
In the South Warwickshire case the employer would have been able to successfully defend the claim if it could show that the decision was made in relation to the claimant's lack of leadership skills, rather than because of the comments in the discriminatory reference.
This article is taken from HR Law - August 2018.
