Prospective employer liable for withdrawing job offer where one of two unsatisfactory references was discriminatory

Summary

The EAT upheld a decision in South Warwickshire NHS Foundation Trust v Lee that a prospective employer’s decision to withdraw a conditional offer was discriminatory as the decision to withdraw was based on an unsatisfactory reference which was found to be “unduly negative and inaccurate because of disability related absences”.

Facts

The Claimant was employed as a Nurse Specialist by an NHS Trust (“the Trust”) for five years. Throughout her employment, the Claimant was a disabled person for the purposes of the Equality Act 2010. In 2015, the Claimant decided to look for other work and commenced employment with a private sector health care provider (“the Care Provider”), however after a month the Claimant chose to quit this role to move back to the NHS. The Claimant applied for a Team Leader role within a different NHS Trust (“the Appellant”) and was offered the role, subject to references and pre-employment checks.

The Appellant sought references from the Care Provider and the Trust. The Appellant was concerned by both references received. The reference provided by the Care Provider expressed that the Claimant was “unable to cope with complex community packages” and “found it difficult to keep up with the demands and pressures that come with community complex pressures”. This was of particular worry to the Appellant as the role the Claimant had applied for required the Claimant to undertake the same kind of work. The reference provided by the Trust had an overly negative focus on the Claimant’s absences which related to the Claimant’s disability.

On review of these references the Appellant withdrew the job offer. The Claimant issued proceedings and claimed she had been subject to disability discrimination by the Trust, her previous Line Manager at the Trust who provided the reference, and the Appellant.

Outcome

The Employment Tribunal found in favour of the Claimant and held that the reference given by the Trust was discriminatory. The Tribunal noted that the Appellant had clearly been influenced by the Trust’s reference. The Appellant had to show that the withdrawal of the offer had nothing whatsoever to do with this reference and it had failed to discharge that burden.

The Appellant argued that its decision was justified. It argued that its legitimate aim was to recruit an employee into the post who was capable in all respects of undertaking the requirements of the role. The Tribunal accepted that this was a legitimate aim; however the Tribunal was not satisfied that the withdrawal of the offer was a proportionate means of achieving that aim. The relevant regulations made it clear that the obligation on an NHS employer is to seek to employ people who ‘after reasonable adjustments’ are capable of performing tasks intrinsic to the role.

The EAT dismissed the Appellant’s appeal. In its reasoning the EAT found that as the Appellant had accepted both references had influenced its decision, the withdrawal of the job offer was therefore, in part, influenced by a discriminatory reference. In light of the above obligation on NHS employers, the Appellant should not have relied upon the Trust’s reference which made negative comments about the Claimant’s disability and should have determined whether the Claimant would be capable in the role once reasonable adjustments had been made.

Implications for employers

This case highlights the importance for employers to ensure they do no rely upon discriminatory references when recruiting to avoid any potential liability for loss of earnings or injury to feelings if they withdraw an offer on this basis.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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