Withdrawal of job offer after negative reference results in disability discrimination award
Can a prospective employer be liable for disability discrimination by relying on a discriminatory reference to withdraw a job offer? Yes, according to the following decision which shows the potential adverse consequences for employers and prospective employers when a job offer is withdrawn as a result of a negative reference motivated by the applicant’s disability related absences.
In the case in question, the Claimant was offered a job with NHS England, subject to satisfactory references.
NHS England requested a reference from the Claimant’s previous employer, Coventry City Council, which the Council supplied. On receipt of the reference, NHS England telephoned the Council to obtain more information. In that telephone call, the Council’s representative explained that the Claimant had had lengthy periods of sickness absence during her employment with them. After the NHS England employee outlined the responsibilities of the new role, the Council representative allegedly said that she would not employ the Claimant in such a role and she did not think the Claimant would be able to undertake it.
Following the verbal reference, NHS England withdrew the job offer to the Claimant and the Claimant brought claims of disability discrimination against both Coventry City Council (for the verbal reference) and NHS England (for withdrawing its job offer).
The claims were dismissed by the ET as it did not consider that the Claimant had proved the necessary link between the Council’s adverse assessment of her in the telephone call and her sickness absence.
Upholding the Claimant’s appeal, the EAT explained that when a disabled job applicant’s offer of employment is withdrawn, following a negative verbal reference from their former employer, a tribunal should consider whether sickness absence arising out of disability played any part in the negative assessment of the applicant.
In this case, it was clear to the EAT that the Claimant’s disability related sickness absence played a part in the Council’s assessment of the Claimant’s inability to undertake the job offered by NHS England, and the latter’s decision to withdraw its job offer.
In the EAT’s view, the tribunal should have inferred that the Council’s comments about the Claimant’s unsuitability for the new role were made at least partly because of the Claimant’s absences which were a consequence of her disability and these comments led to NHS England withdrawing its offer of employment.
Accordingly, the Claimant's claim of discrimination arising from disability against both Coventry City Council and NHS England was upheld by the EAT.
This case highlights the potential dangers to employers and prospective employers when providing and requesting references about employees who may have unsatisfactory attendance records as a result of disability.
The recipient of the reference is in a difficult position. If the reference it obtains undermines its confidence in the job applicant’s suitability for the role, its ability to withdraw an offer of employment may be compromised by the knowledge it has of the applicant’s disability from information it is given about his absence record.
In addition, for employers like the one in this case, it is inherently risky to volunteer further information about a prior written reference in a telephone call.
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