In Pnaiser v NHS England and Coventry City Council UKEAT/0137/15, the Employment Appeal Tribunal (EAT) considered whether a negative verbal reference that resulted in the withdrawal of a job offer amounted to discrimination arising from disability.

Facts

Ms Pnaiser was employed by Coventry City Council (the Council) as a lifestyle risk management services implementation manager. She suffered from a medical condition that amounted to a disability for the purposes of the Equality Act 2010. Ms Pnaiser regularly worked from home as a result of ongoing symptoms and underwent two operations connected to her condition, which resulted in significant absences from work in 2011. At this time she was managed by Ms Tennant.

In April 2012 Ms Pnaiser successfully applied for a secondment. She started the secondment at the end of May 2012 but from August 2012 was absent with a recurrence of her previous medical problems. The secondment was terminated in September 2012 and in October 2012 she had further disability-related surgery.

In March 2013, Ms Pnaiser was made redundant as a result of a restructure. She signed a settlement agreement, which included an agreed reference. In July 2013 she applied to NHS England for the role of programme manager. She was offered the role, subject to satisfactory references. In response to a reference request from Professor Rashid, the recruiting manager of NHS England, Ms Tennant provided the reference agreed as part of the settlement agreement rather than completing NHS England’s standard template and sent this under cover of an email offering to discuss the matter further.

Noting that Ms Tennant’s reference was not in the required format and was brief, Professor Rashid took Ms Tennant up on her offer to discuss the matter further. During their call Ms Tennant told Professor Rashid that Ms Pnaiser had had significant time off work in her previous role and, after learning of the job description for the new role, indicated that she would not recommend her for the new role.

Following the verbal reference, NHS England withdrew its offer of employment and Ms Pnaiser brought a claim for discrimination arising from disability under section 15 of the Equality Act 2010 against both the Council and NHS England.

Employment tribunal decision

The employment tribunal (ET) rejected Ms Pnaiser's claims on the basis that she had not established a prima facie case of discrimination and so the burden of proof had not shifted to either the Council or NHS England.

Ms Pnaiser appealed, arguing that the ET had set an "impermissibly high hurdle" by requiring her to show that the only inference that could be drawn from the facts was that discrimination had occurred, before the burden could shift to the Council or NHS England. The latter cross-appealed, arguing that it had no knowledge of Ms Pnaiser's disability so could not be liable for disability discrimination.

EAT decision

The EAT held that there was a prima facie case to answer. What the ET should have asked itself was whether the fact that Ms Tennant gave a negative reference, in a conversation where she mentioned Ms Pnaiser's significant absence and her knowledge of and concerns about her history of significant absences, were together sufficient to raise a prima facie case against the Council. If so, the burden of proof shifted.

The question was why Ms Tennant gave the negative reference and in that regard, whether there was evidence from which it could be inferred that Ms Pnaiser's absence was part of the reason.

The EAT held that there were sufficient facts from which the ET could infer that the negative reference was made by Ms Tennant (at least partly) because of Ms Pnaiser's absences (which were a consequence of her disability) so that the burden of proof shifted to the Council and NHS England to show that absence played no part whatever in the reasons Ms Tennant said Ms Pnaiser was unsuitable and which led to the withdrawal of the offer of employment.

This was one of the rare cases in which it was appropriate for the EAT to substitute its own findings and it therefore upheld the claims of unlawful discrimination against both the Council and NHS England. The case has been remitted to the ET to determine remedy. The cross-appeal by NHS England was dismissed.

Comment

This case serves as a useful reminder of the care that needs to be taken when giving and receiving references.

Where a reference is given, it is important that it is not then compromised by later references, whether given verbally or in writing. In this case, the former employer should have stuck to the agreed reference. In any event, particular care should always be given in relation to comments about performance, attendance or sickness absence and it is best to avoid giving verbal references. As Ronan Keating and others have memorably sung, "You say it best when you say nothing at all".

The recipient of a reference is also in a difficult position once it has received a reference that affects its confidence in the recruit but which is potentially tainted by discrimination; the prospective employer in this case could have withdrawn the offer of employment on the basis of the written reference alone or alternatively could have made enquiries about Ms Pnaiser's condition before making a decision so that if it withdrew the offer, it had a better chance of establishing a justification defence.