Be Careful What You Say - How a Negative Verbal Reference can Lead to a Disability Discrimination Claim
The Employment Appeal Tribunal has decided that disability discrimination arose when a job offer was withdrawn after a former employer gave a negative verbal reference.
In Pnaiser v NHS England and Coventry City Council, Ms Pnaiser was disabled within the meaning of the Equality Act 2010. Her employment came to an end by reason of redundancy, and was terminated by way of a settlement agreement, which included an agreed reference.
Ms Pnaiser subsequently applied for a job elsewhere, which was offered to her subject to satisfactory references. The settlement agreement reference was provided by her former employer, but a telephone conversation was also offered if the prospective employer wanted further information.
That telephone conversation took place, and the prospective employer was informed that Ms Pnaiser had had a significant amount of time off work in her previous employment for a condition lasting more than 12 months, and Ms Pnaiser was not recommended for the new role.
The job offer was withdrawn following that telephone conversation and Ms Pnaiser brought a claim against both her former and prospective employers for discrimination arising from disability.
The Employment Tribunal (ET) dismissed the claim on the basis that a case of discrimination had not been established.
Ms Pnaiser appealed, arguing that the ET set an 'impermissibly high hurdle' by requiring her to show that the only inference that could be drawn from the facts is that discrimination occurred.
Appeal Decision
The EAT allowed Ms Pnaiser's appeal and found that the tribunal should have asked whether it could be inferred from the facts that the negative reference was given at least partly because of Ms Pnaiser's previous absences (which were disability related). Once this was established, the burden shifted to the respondent to show that the disability related absences were not the reason that the referee did not recommend Ms Pnaiser for the new job.
The EAT decided that it was clear from the facts that the unfavourable reference was at least partly as a result of the sickness absence, which in turn was a consequence of the disability, and therefore discrimination arising from disability had occurred.
Best Practice
This case is a good reminder to schools to take caution when providing a reference.
Where a written reference is agreed as part of a settlement agreement, schools should not provide a separate verbal reference which is inconsistent or contradicts the agreed written reference. It is important to note here that telephone conversations can constitute verbal references, even if it is expressed to be 'off the record'.
Schools should therefore exercise caution if they receive a telephone call from the employee's prospective new employer and not comment (other than to confirm the genuine nature of the written reference provided). It is essential not to depart from the agreed reference as this could constitute discrimination (as seen in this case) and, if there is also a settlement agreement, could also give rise to a breach of contract claim.
Employers also have a duty of care to both prospective employers and employees when providing a reference and can be sued should they breach this. Careful consideration should be given to the reference before it is agreed - whilst a reference does not need to be comprehensive, it is important that it is not misleading and schools need to consider whether it creates a true and accurate impression of the individual concerned.
When schools are prospective employers, they should carefully consider the reasons for withdrawing a job offer on the basis of information provided as part of a reference, and be aware of the risk of potential discrimination claims in these situations.