Legal Corner: Negative reference amounts to disability discrimination

26th Feb 2016

Employers are often asked to provide references in respect of former employees, and these can throw up a range of issues as the amount of detail that they should provide. The case of Pnaiser v (1) NHS England and (2) Coventry City Council UKEAT/0137/15 provides a cautionary tale of what can happen if an employer provides more than merely a factual reference.

Dr Pnaiser was employed by Coventry NHS Primary Care Trust from July 2010. She suffered from a disability that resulted in her having significant periods of time off work. By September 2012 the PCT began the consultation process in relation to the effect of the abolition of PCTs; although Dr Paisner had been ring fenced for a position in the new structure, she was too ill to take part in the interview process. Thereafter, she asked to be considered for redundancy rather than apply for an alternative position, and her request was granted in early 2013. As part of her redundancy, the wording of a reference was agreed between the parties – this made no criticism of her absences or her performance.

In July 2013 Dr Paisner applied for a position in NHS England, which she was offered following an interview, subject to satisfactory references. One of the references provided referred to the fact that Dr Paisner had taken significant periods of time off work due to surgical procedures. When the PCT was asked for a reference, they provided a copy of the agreed reference by email, which also offered to discuss matters further. NHS England took up this offer and spoke to Dr Paisner’s former line manager. According to NHS England, she made clear that she did not feel that Dr Paisner was suitable for the role that she had applied for, although she later denied saying this. However she did not explain the reasons for this at the time, but did acknowledge later that the reasons for not believing Dr Paisner to be suitable related to her sickness absence rather than her capability.

As a result of this reference, NHS England withdrew the job offer to Dr Paisner, who then brought a claim to the employment tribunal against both the PCT and NHS England alleging disability discrimination. The tribunal acknowledged that the PCT had knowledge of Dr Paisner’s disability and had made negative comments as to her suitability for the prospective role based, apparently, on her sickness absence. They accepted that NHS England had constructive knowledge of Dr Paisner’s disability due to the information it had received as to her significant time off work for surgery. However the tribunal did not accept that Dr Painder had demonstrated that either organisation had acted in a discriminatory way towards her.

This was a viewpoint that was roundly rejected by the Employment Appeal Tribunal, who acknowledged that Dr Paisner had clearly made out a prima facie case that the reason for the PCT providing a negative reference as to her suitability for the role she had applied for was related to her sickness absence.

It was then for the PCT to show that the absences played no part in the reasons for the negative reference, but their evidence that the negative reference had not in fact been supplied, had been rejected. Therefore the only obvious conclusion was that the reason for the negative reference was the disability related absences such that Dr Paisner’s claim against them succeeded. As for NHS England, it was also clear that having rescinded the job offer on the basis of the references, and having had constructive knowledge of the disability, the reliance on references which related to absences caused by a disability also amounted to discrimination as a consequence of Dr Paisner’s disability. Her claims against them also succeeded.

Employers have a duty to provide accurate and non-discriminatory references, and this case shows the pitfalls of providing information that goes beyond that scope, especially during the course of a telephone call. There was a significant dispute as to what had actually been said.

Many employers now only provide factual references. This is one way to deal with the matter. However if an employer wishes to go further, they should ensure the accuracy of the information, and try and ensure that the information is provided in writing, so that there is no subsequent dispute. Having said that, employers should also be aware that individuals about whom a reference is written may well seek to view a copy of the reference, through a Subject Access Request for example, and an employer should not think that merely by making clear that the reference is confidential, that it will actually remain that way.

Safia Tharoo, Barrister, 42 Bedford Row, London


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