The EAT upheld a decision that a prospective employer's decision to withdraw a job offer made to a disabled candidate was discriminatory.  The prospective employer's decision had been tainted by the contents of one negative and discriminatory reference received from a former employer.  This was the case despite the fact that a second negative and non-discriminatory reference had been received from another former employer (South Warwickshire NHS Foundation Trust v Lee & ors (EAT)).

Background law

Under section 15(1) of the Equality Act 2010 (EqA) disability discrimination occurs if A treats B unfavourably because of something arising in consequence of B's disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.  However, this does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

In the recent decision of City of York Council v Grosset the Court of Appeal held that when determining whether there has been unfavourable treatment arising from, or in consequence of, an employee’s disability, two distinct causative issues must be investigated: (i) did the employer treat the employee unfavourably because of an identified "something"?; and (ii) did that "something" arise in consequence of the employee's disability?

Facts 

The Claimant was an experienced nurse who worked for Staffordshire and Stoke on Trent Partnership NHS Trust (Staffordshire and Stoke) for around five years. Mrs Mason was the Claimant's line manager.  In 2010, the Claimant had been diagnosed with knee arthritis, which amounted to a disability for the purposes of the EqA.  The Claimant's disability caused her to have absences from work and difficulties in carrying out her role.

The Claimant left Staffordshire and Stoke to work for a private health service provider known as Ark, where she carried out a more managerial role.  After one month at Ark, the Claimant applied for a position returning to the NHS at South Warwickshire NHS Foundation Trust (South Warwickshire) and was given an offer of employment conditional on receipt of satisfactory references. 

Her intended new line manager at South Warwickshire, Mrs Martin, requested references from her previous employers. On behalf of Staffordshire and Stoke, Mrs Mason gave what was deemed by the Tribunal to be a discriminatory reference by reason of disability. The reference focused on the Claimant’s health issues and absences from work, which had resulted directly from her disability.  Ark, the second employer, provided a reference which described the Claimant as not able to cope with complex community cases and lacking in managerial skills. 

Mrs Martin attempted to contact both reference providers. Ark confirmed that the Claimant lacked leadership skills and objected to delivering clinical work.  However, Mrs Martin was unable to contact Mrs Mason.  South Warwickshire then withdrew its job offer on the basis that the references were not satisfactory.  

Employment Tribunal decision

The Tribunal found that Staffordshire and Stoke and Mrs Mason had unlawfully discriminated against the Claimant by providing an unduly negative and inaccurate reference which focused on her sickness absence and inability to perform her physical nursing role.  This amounted to something arising in consequence of her disability (there was no appeal against this aspect of the decision). 

The Claimant had not made South Warwickshire aware of her disability at interview, however, the Tribunal deemed that Mrs Martin had constructive knowledge as a result of the reference given by Mrs Mason. The Tribunal identified the unfavourable treatment in this case as the withdrawal of the job offer and, therefore, the burden of proof passed to South Warwickshire to show that the decision had "nothing whatsoever to do with" the discriminatory reference.  Ultimately, the Tribunal concluded that the discriminatory reference had been more than a minor influence on the decision.  Accordingly, the burden of proof had not been discharged and the withdrawal of the job offer was discriminatory.  

EAT decision

South Warwickshire appealed on the basis that the Tribunal had erred in concluding that the influence of Mrs Mason’s reference was more than minor and also that they had erred on the proportionality issue.

The EAT dismissed the appeal, finding that the Tribunal had been correct to require that the withdrawal of the job offer had "nothing whatsoever to do with" the discriminatory reference and this had not been shown.  In respect of the proportionality issue, the EAT held that the Mrs Martin had allowed the discriminatory reference to taint her decision rather than taking further steps to address the points raised in the references and enquiring into reasonable adjustments. 

Comment 

The claim will now return to the Tribunal to determine the remedy. However, the Claimant may still lose, if the Tribunal ultimately finds that the other reference given by Ark (which was not discriminatory) was enough on its own to have meant that South Warwickshire would have withdrawn the job offer.

The lesson for employers when considering whether to withdraw a job offer based on unsatisfactory references can be summarised as follows:

• When reading a reference, consider whether the reference could be considered discriminatory, even if the employer had not been specifically made aware of the prospective employee’s protected characteristic (such as a disability). 
• Make further enquiries from the reference provider and, if appropriate, from the prospective employee for more information. 
• Consider what reasonable adjustments can be made.
• Ensure the reason why the job offer is withdrawn is properly recorded.

South Warwickshire NHS Foundation Trust v Lee & ors

This article was drafted by Florence Millar, Trainee Solicitor