Case update (2): Disability discrimination – job applicants

settlement agreement - hand signing with penSummary: Can provision of a reference referring to length of absence and withdrawal of a job offer as a result, amount to disability discrimination?

Yes, says the EAT in Pnaiser v NHS England & Anr available here.

Facts: Ms Pnaiser, the employee, was employed by Coventry City Council as a Lifestyle Risk Management Services Implementation Manager. She was “disabled” within the meaning of disability discrimination laws as set out in the Equality Act 2010.

In 2011, when Ms Pnaiser was managed by Ms Tennant, she had two operations which resulted in significant absences from work. In 2012, when her line manager changed, she was seconded to a slightly more senior role, during which period she was absent for several months. During Ms Pnaiser’s time with the Council, she received a positive appraisal from Ms Tennant and was endorsed in her application for a secondment.

In March 2013 Ms Pnaiser was made redundant, signing a settlement agreement which included an agreed reference as part of its terms. In July 2013 she applied for a job with NHS England, a role which involved more responsibility than the previous two roles she had undertaken with the Council. She was offered the job in August 2013, subject to satisfactory references, and accepted it on 13 September 2013.

When the recruiting Manager of NHS England, Professor Rashid, requested a reference from the Council, Ms Tennant provided the reference which had been agreed as part of the settlement with Ms Pnaiser. She did so under cover of an email offering to discuss the matter further. Professor Rashid phoned Ms Tennant on 16 September 2013 and sought further clarification.

During the phone call, Ms Tennant told Professor Rashid that Ms Pnaiser had had significant time off work in her previous role. After Professor Rashid outlined the responsibilities of the new role to Ms Tennant, Ms Tennant indicated that she would not recommend Ms Pnaiser for the new role and mentioned significant sickness absences for a condition lasting more than 12 months.

NHS England withdrew the job offer from Ms Pnaiser and she brought a Tribunal claim for disability discrimination against the Council and NHS England. The Tribunal dismissed her claim.

Ms Pnaiser appealed to the EAT.

In relation to the claim against the Council, the issue was why Ms Tennant gave the negative reference and whether there was evidence to infer that the reason was Ms Pnaiser’s level of absence. The EAT held that there was such evidence. Ms Tennant knew of Ms Pnaiser’s disability. The unfavourable treatment (i.e. the unfavourable reference) arose as a result of the absences and the absences were disability related. The EAT found that the Council had discriminated against Ms Pnaiser on grounds of her disability.

In relation to the claim against NHS England, it was held that Professor Rashid as a doctor with a high level of awareness of medical conditions should reasonably have been expected to know that Ms Pnaiser had a disability. Particularly as one reference expressly referred to two periods of absence in a 12 month period and Ms Tennant too had mentioned Ms Pnaiser’s significant absence. Professor Rashid had treated Ms Pnaiser unfavourably by withdrawing the job offer. He had done so because of Ms Tennant’s comments that Ms Pnaiser was unsuitable for the job. Ms Tennant had made those comments because of Ms Pnaiser’s absence record which arose in consequence of Ms Pnaiser’s disability. The EAT found that NHS England had discriminated against Ms Pnaiser on grounds of her disability.

Implications: Long term absence is a good indicator of a disability and employers should act with caution before rejecting a job applicant, or withdrawing an offer of employment, on this basis. Although an employer must be aware of a candidate’s disability for a claim of disability discrimination to succeed, an experienced HR practitioner may well be reasonably expected to know that a candidate has a disability if they are given details of extensive absences.

Employers may be able to justify the discrimination but we advise you to get in touch with us to take legal advice before rejecting the candidate on these grounds.

Also, in terms of references, this case highlights the dangers when providing references. The former employer ought to have stuck to the reference which was agreed as part of the settlement agreement, or else not have agreed a reference.