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Posted 26 February 2016
by Stephen Jennings

A warning to employers about references

A recent Employment Appeal Tribunal (EAT) case highlights the dangers to employers when providing references and also to prospective employers when seeking references. The EAT held that an employment tribunal erred in its approach when it found that a claimant had failed to establish a prima facie case of discrimination arising from a disability.

The claimant, Ms Pnaiser was working for the Coventry City Council. She was disabled and   had a number of significant absences from work as a result of her disability. In March 2013, she signed a settlement agreement which included an agreed reference. In July 2013, Ms Pnaiser applied for a job with NHS England. A written reference was sought from Coventry City Council and received. As the reference was not on the required template, Professor Rashid from NHS England telephoned Ms Tennant at Coventry City Council. During this conversation, Ms Tennant said that she could not recommend Ms Pnaiser for the role and implied that her sickness absences had affected her performance. As a result, NHS England then withdraw their offer.

Ms Pnaiser brought an employment tribunal claim against the Council and NHS England alleging disability discrimination. An employment tribunal dismissed the claim finding that the claimant had failed to establish a prima facie case of discrimination that would then shift the burden of proof to the employer. The claimant appealed. The EAT found there had been a prima facie case to answer and the tribunal had erred in its approach to the burden of proof. The EAT said it was clear on the facts that an unfavourable verbal reference was given partly due to the sickness absences, which were a consequence of the claimant’s disability. Therefore, the burden shifted to the respondent to show that the sickness absences played no part in the assessment that the claimant was unsuitable and the subsequent withdrawal of the job offer. A finding of unlawful discrimination was substituted

The former employer should have kept to the original agreed written reference as part of the settlement agreement. It is risky to provide a verbal reference to a prospective new employer which is separate to a written reference. In these circumstances, the prospective employer is in a difficult position as to whether to withdraw an offer which may put them at risk of a claim but alternatively proceeding with the offer may prove less than ideal.


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About the author

Stephen Jennings

Partner and Solicitor

Partner in the litigation department specialising in employment law, he is the relationship manager for many of the firm's employment clients