The EAT has overturned a decision of the Tribunal in Pnaiser -v- NHS England and Coventry City Council, holding that the burden of proof had been applied incorrectly, and a prima facie case of discrimination had been made out. The case concerned a negative oral reference given by a former employer.

Ms Pnaiser was disabled, and had significant periods of absence from work due to her disability. She was subsequently made redundant. She applied for a new job with the NHS and her old employer was asked to provide a reference. They did so, but sent an email offering to discuss the matter further. During the telephone call, Ms Pnaiser’s old manager mentioned her significant periods of absence and (although exactly what was said was in dispute) indicated that she would not recommend Ms Pnaiser for the new position. The job offer was subsequently withdrawn.

The EAT held that the Tribunal had been wrong to require Ms Pnaiser to prove that the only inference which could be drawn from a negative oral reference was that discrimination had taken place. This went beyond the requirement of the Equality Act 2010, which merely required her to raise a prima facie case. It was clear in this case that the sickness absences, which arose out of disability, could have played a part in forming the negative view of the manager - and as such, the EAT concluded that discrimination arising from disability had been made out (a justification argument had not been run). The case was remitted to the Tribunal to consider the remedy.