In Pnaiser v NHS England and Coventry City Council, the Employment Appeal Tribunal considered whether an individual was discriminated against when her former employer provided a reference which resulted in a job offer being withdrawn.

The Equality Act provides that a person is discriminated against if they are treated unfavourably because of something arising in consequence of their disability, unless the unfavourable treatment is justified.

Ms Pnaiser worked for Coventry City Council. She was disabled. In 2011 and 2012 she had several significant absences from work which were disability-related. In 2013 she was made redundant and signed a settlement agreement which included an agreed reference.

Ms Pnaiser applied for a job with NHS England and was offered the job, subject to a satisfactory reference. The Council provided the agreed reference, together with a covering email which offered to discuss the matter further. The recruiting manager at NHS England telephoned the Council for further information. During the telephone conversation, Ms Pnaiser’s former line manager informed the recruiting manager that Ms Pnaiser had had significant time off and said he would not recommend her for the role, as she might struggle to cope with the pressure. As a result, the job offer was withdrawn. Ms Pnaiser brought tribunal claims against both employers, claiming that she had been discriminated against for a reason relating to her disability.

The EAT held that Ms Pnaiser had been discriminated against. There were facts from which the tribunal could infer that the comments about Ms Pnaiser’s unsuitability were made partly because of her sickness absences. The burden then shifted to the employers to show that Ms Pnaiser’s absences did not play any part in their assessment that she was unsuitable for the role.

This case highlights the potential dangers of requesting and providing employment references. NHS England should have stuck to the reference which had been agreed, as it is extremely risky to provide a verbal reference which contradicts an agreed written reference. The recipient of a reference which refers to illness and/or lengthy sickness absences which are or could be disability-related should be very cautious about rejecting a job candidate for that reason. It is particularly risky to withdraw a job offer which has already been made in these circumstances.