Blog: Another salutary tale about references

The law surrounding job references is slow to evolve, but when case reports in this area do occasionally come along, they are often both very interesting and also a reminder of the need to keep our wits firmly about us when giving or taking up a reference.

The recent Employment Appeal Tribunal’s decision in Pnaiser v NHS England and Coventry City Council is another real eye-opener, highlighting that references are one of the most tricksome areas when it comes to disability claims.

Dr Pnaiser performed a medical role within Coventry Primary Care Trust, although her team were later transferred to the City Council under a nationwide NHS re-structure. She spent a couple of years in the role, and had significant periods of absence due to disability-related surgery. As part of the restructure, she opted for redundancy and entered into a settlement agreement which included an agreed reference. The reference was a few sentences long, made no reference to sickness or absence, and was factual and positive, although very limited.

She subsequently applied for a role with NHS England (at a slightly higher grade) and was offered the job, subject to satisfactory references. She supplied the names of four referees who were provided with reference questionnaires. One referee mentioned that she had had long-term absence due to surgery. Ms Tennant, her former line manager, supplied the standard reference and indicated that she could be contacted by phone.

Prof. Rashid, who was recruiting for the role, telephoned Ms Tennant and, as a result of the call, arranged for the offer to withdrawn. There was some dispute during the Tribunal hearing about what the content of the call had been. It was established that the absences had been mentioned, at least in the context of making it difficult to assess Dr Pnaiser’s performance, and that Ms Tennant did not believe that Dr Pnaiser was suitable for the role and that she would not recommend employing her in it.   Having had the job offer withdrawn, Dr Pnaiser sued both Coventry City Council and (her former employer) and NHS England (who had withdrawn the job offer) for disability discrimination.

Initially, the Employment Tribunal dismissed her claim, making a finding that Dr Pnaiser had failed to show that the reason for either Ms Tennant’s negative comments or Prof. Rashid’s decision to withdraw the offer was a reason arising from her disability. However, the Employment Appeal Tribunal overturned that decision. They took the unusual step of not simply sending the case back to the ET, but of substituting their own decision that both Coventry City Council (through Ms Tennant) and NHS England (through Prof. Rashid) had discriminated against the Claimant. Neither had sought to argue that such discrimination would be justified, and so Dr Pnaiser was successful.

It is relatively easy to see where Ms Tennant at the City Council went wrong. Where an employee departs in difficult circumstances and a reference has been agreed, particularly under a binding contract such as a settlement agreement, it is always dangerous to go beyond that reference. Whilst a telephone call might feel cosy and private, its impact is just as critical as a written reference, often much more so, as I’m sure you’ll agree, and it may well come back to haunt you.

There is a live (and lively) debate about the problems caused by agreed references, particularly in areas where safeguarding is a concern, but it certainly is not on to let an employee believe that an agreed reference will be given and then to say something else behind their back. Another mistake Ms Tennant made was in conflating Dr Pnaiser’s performance in the role whilst at work (which was agreed to be fine) with her absences, and in allowing this to infect the opinion she gave Prof. Rashid about the Claimant’s suitability.

I have much more sympathy for Prof. Rashid. He didn’t have any clear information about Dr Pnaiser’s medical condition (he’d made a point of not asking – presumably in an attempt to ensure he wasn’t being discriminatory) and yet the Tribunal deemed him to have had ‘constructive knowledge’ of her disability merely through the second-hand information he’d received about her absences. That, in itself, is a stark lesson for anyone dealing with recruitment and thinking that disability-discrimination obligations don’t apply until a candidate makes their disability known. It would be hard to justify hiring someone in the face of a report from their most recent line manager that they weren’t up to the job – so he ended up between a rock and a hard place.

It is interesting, however, that the HR people within the NHS Business Services Authority, who were sub-contracted to carry out the pre-employment checks for NHS England, had advised against the withdrawal of the offer and refused to do it themselves. I suspect that it may have been Prof. Rashid’s failure to heed their advice that was his downfall.

So the ‘take home’ messages? Well, for Prof. Rashid it was always listen to HR!  More widely, I suggest the messages for employers are twofold. First, where you are the former employer, never undermine a reference agreed as part of a settlement agreement with a subsequent telephone conversation that goes ‘off script’. And as a hirer, think very carefully indeed before rejecting a candidate for health reasons, in case they turn out to be disabled.

Joanne Sefton
Barrister, Menzies Law