In Pnaiser v NHS England and Coventry City Council (UKEAT/0137/15) the Employment Appeal Tribunal (EAT) considered the effect of a negative verbal reference.
In Pnaiser the Claimant, who was disabled for the purpose of the Equality Act 2010, was made redundant from Coventry City Council and was provided with an agreed written reference as part of her settlement terms. During her time at Coventry City Council the Claimant had been absent for significant periods due to various operations related to her disability. However she had received positive appraisals from her manager, Ms Tenant.
The Claimant was offered a role with NHS England, subject to satisfactory references. Upon request, Ms Tenant provided the agreed written reference under cover of an email, offering to discuss the matter further. Professor Rashid of NHS England contacted Ms Tenant by telephone. During the discussion, Ms Tenant expressed doubts about the Claimant’s suitability for the role, citing the Claimant’s disability-related absences adverse effect on the Claimant’s performance. NHS England withdrew the job offer on the basis of the verbal reference.
The Claimant brought a claim in the Employment Tribunal alleging discrimination under S15 of the Equality Act 2010. The Employment Tribunal dismissed the claim, finding that the Claimant had failed to establish a case of discrimination. The Claimant appealed and allowing the appeal the EAT held that there had been discrimination by both NHS England and Coventry City Council, with the negative reference being given partly as a result of the sickness absences, which were a consequence of the disability. As yet the level of damages payable to the Claimant by NHS England and Coventry City Council is unknown.
Where employers have agreed to provide a written reference they should stick to the content of the reference, and beware of giving verbal feedback, however positive it may be. This is especially relevant where employees considered disabled for the purposes of the Equality Act 2010 are concerned.