Where a prospective employer receives an unsatisfactory reference about an applicant's suitability for a role, in circumstances where they have been given information about the applicant's medical treatment and absences from work suggesting disability may be in issue, the prospective employer should enquire further to ascertain whether the reason for the negative opinion is the applicant's disability or disability-related sickness absence. If it is, the employer should only withdraw the offer if this can be justified.

In Pnaiser v NHS England & anor, the withdrawal of a job offer in response to a negative reference was held to be unlawful discrimination arising from a disability. It was inferred that the reason for the ex-employer stating that the applicant would be unsuitable for the role was her disability-related absence. The withdrawal of the offer was because of the reference, and therefore because of something arising from disability, and the prospective employer was fixed with constructive knowledge of the applicant's disability given its knowledge of her undergoing surgical procedures and significant absence record. In this case the prospective employer's employee dealing with the application was a medical doctor, but an experienced HR practitioner might equally be fixed with constructive knowledge of disability if aware of significant sickness absence.

Employers must also bear in mind the potential for disadvantage to disabled applicants in determining their recruitment process. A recent ET case, Waddingham v NHS Business Services Authority, highlighted the need for employers to consider alternatives to competitive interview when assessing disabled employees for a vacant post. Where a disabled employee was disadvantaged at interview as a result of disability (the employee was undergoing treatment for cancer), the employer should have considered assessing the employee's capabilities in a different way, using information from his previous work performance and appraisals. This was required even though the employee was willing to go ahead with the interview and downplayed the impact of his disability, as the employer could reasonably have been expected to know that the employee would be disadvantaged. Although it was not a reasonable adjustment to lower the pass mark for the interview, there was a failure to make a reasonable adjustment in not assessing the employee in a different way. It is relevant that in this case the employee had long service, including experience relevant to the role; different circumstances will influence what is a reasonable adjustment.

The consequential failure to appoint the employee to the role was unjustified discrimination arising from disability. The parties accepted that the employer's aim of appointing the best person for the job was legitimate, but the employer's insistence on competitive interview was not a proportionate means to achieve it. It is interesting that the tribunal had some doubt as to whether appointing the best candidate could be a legitimate aim where a disabled candidate can lawfully be given more favourable treatment; in its opinion a more appropriate legitimate aim may have been to find a candidate who could perform the role to the required standard. However, this is the obiter view of a first instance tribunal; whether appointing the best person can be a legitimate aim would surely depend on all the circumstances including the importance of the role and size of employer.