Giving References and Withdrawing Job Offers

A verbal reference referring to an individual’s significant absences whilst in her previous role and her suitability to perform a role, and the withdrawal of a job offer as a result constituted discrimination arising from disability.

In Paisner v NHS England & Another prior to leaving on grounds of redundancy from Coventry City Council in March 2013 Dr Pnaiser had had several disability related absences during 2010 – 2013. Upon her departure the parties agree a reference within a settlement agreement which would be given to prospective employers.

In August 2013 Dr Pnaiser was offered a new role by Professor Rashid of NHS England subject to satisfactory pre-employment checks but this job offer was withdrawn subsequently because of an unsatisfactory verbal reference.

The unsatisfactory verbal reference was given by Ms Tennant, Dr Pnaiser’s previous manager. Ms Tennant had initially given Professor Rashid the mutually agreed reference and then had verbally informed him that Dr Pnaiser had had significant time off work in her previous post. The rest of that conversation between Professor Rashid and Ms Tennant was disputed by the parties but the Tribunal was satisfied Ms Tennant told him she did not consider Dr Pnaiser suitable for the role in question and would be unable to fulfil it and mentioned in that conversation her absences from work. Professor Rashid already knew from another referee that Dr Pnaiser had had time off due to surgical procedures but did not ask for further information from either the other referee or Ms Tennant. Following the discussion Professor Rashid decided to withdraw the job offer despite NHS England receiving advice from the internal organisation employed to carry out the checks NHS Business Services Authority (“NHS BSA”) not to withdraw the offer as they risked a Tribunal.

Dr Pnaiser brought claims against NHS England and Coventry Council for discrimination arising from disability. She argued that Prof Rashid knew or ought to have known of her disability and that the withdrawal of a job offer by Prof Rashid was unfavourable treatment because of her disability. Surprisingly, NHS England did not argue the defence of justification. Dr Pnaiser also argued that, she had been given a negative reference by Ms Tennant because of her disability related absences which led to the withdrawal of the job offer.  It was conceded that the Council (and Ms Tennant) knew that the Claimant was disabled at the time the reference was given.

The Employment Tribunal rejected Dr Pnaiser’s claims against the Council and NHS England saying that there was insufficient evidence to reverse the burden of proof, so that it was for the Respondents to prove that it was not disability related. However,  this was rejected by the EAT which said  the findings of fact made by the Tribunal showed that the burden of proof had been reversed.

There was sufficient evidence identified by the Tribunal in their findings to show that the negative reference given by Ms Tennant had been given because of her absences, which were disability related, and that NHS England’s decision to withdraw the job offer was at least partially because of Dr Pnaiser’s absences which were a consequence of her disability. Professor Rashid was deemed to have at least constructive knowledge of the disability.

Therefore, unusually, the EAT substituted a finding of unlawful discrimination and sent the case back to the Tribunal to consider remedy.

For employers, this is a reminder not to deviate from a mutually agreed reference unless there is very good reason for doing so, such as facts arising since the employee left. An employer has a duty of care to a new employer to give a ‘balanced’ reference, therefore if it goes further than dates of employment and position held, it must include the negative as well as the positive.  In addition, managers need to ensure that their assessment of an individual’s suitability for a job is not linked, whether consciously or not, to a protected characteristic such as maternity leave or disability and if it is, that it can be objectively justified i.e a proportionate means of achieving a legitimate aim.

Prospective employers in receipt of a  poor reference should give proper consideration of all the facts before them and whether they need to find out more details before deciding to withdraw a job offer. They should then take advice on withdrawing the offer.

http://www.bailii.org/uk/cases/UKEAT/2015/0137_15_0412.html