Was a tribunal wrong to reject a claim that a verbal job reference referring to sickness absence was discriminatory because it was given in a “neutral” way?
Yes, they were wrong, says the EAT in a recent decision, finding that a reference alluding to sickness absence could, on the face of it, amount to disability discrimination.
Ms Pnaiser, the Claimant in this case was employed by Coventry City Council, where, on promotion to a slightly more senior role she had had several months’ sickness absence. She had eventually left, signing a settlement agreement with an agreed reference as part of its terms.
Ms Pnaiser applied for a new job with NHS England, and Coventry City Council provided the agreed reference, but invited NHS England to call them to discuss it if they wanted to. NHS England took them up on this offer, and, during a telephone conversation, Ms Pnaiser’s previous boss explained that she had had significant time off work, and would probably not be able to cope with the pressure of the role on offer from NHS England. NHS England subsequently withdrew the job offer and Ms Pnaiser brought her claim.
The tribunal had effectively said that there was nothing wrong with the reference, because it gave a neutral assessment of Ms Pnaiser’s ability to do the new role. However, the EAT disagreed with this and said that the proper question for the Tribunal to consider would have been whether or not the reference related to the sickness absences, and therefore the potential disability. This was clearly the case here as both Coventry City Council and NHS England accepted that the sickness absence record had been discussed.
As Ms Pnaiser had established a prima facie case that she had been treated less favourably because of something arising from her disability, the burden of proof shifted to the Respondents to show that they had not discriminated against her.
This case serves to highlight the extreme difficulties faced when giving and receiving references. Both Coventry City Council and NHS England were Respondents in this claim. The lesson to be learned here is that Coventry City Council should have stuck to the reference that had been agreed in the settlement agreement.