Mon 29 Oct 2018

Negative reference meant decision to withdraw job offer was discriminatory

A prospective employer's decision was tainted by a discriminatory reference despite a second negative, but non-discriminatory, reference.

In South Warwickshire NHS Foundation Trust v Mrs Lee & Others Mrs Lee had been employed by the South Warwickshire Trust for five years prior to leaving to take up an opportunity with a private health service provider ("Ark").  During her employment with the Trust, Mrs Lee had been diagnosed with arthritis and this caused absences from work and difficulties in carrying out her role.  Her role at Ark was managerial, but after a month she decided to return to the NHS and applied for and was made a conditional offer of employment. 

References were obtained both from Ark and from Mrs Lee's previous manager at the Trust, and the content of both caused concern.  While the reference from Ark suggested Mrs Lee could not cope with complex cases and lacked managerial skills, the reference from the Trust focussed on her health issues and absences from work.  The Trust withdrew their offer.

An Employment Tribunal claim was raised and it was concluded that the reference from the Trust was discriminatory as it focused on absence and poor performance that arose in consequence of a disability.  That discriminatory reference then led to the unfavourable treatment - the withdrawal of the job offer.  The Tribunal concluded that the discriminatory reference had more than a minor influence on the decision to withdraw the offer - to come to a different conclusion it required the Trust to prove that the withdrawal  had "nothing whatsoever to do with" the reference and they did not manage to discharge that burden of proof.  The Tribunal did accept that it was a legitimate aim for the Trust to recruit an employee who was capable in all respects of undertaking the role in question, but it concluded that there were less discriminatory ways of achieving that aim.

The Trust appealed on the basis that the Tribunal had been wrong to conclude that the influence of the Trust's reference was more than minor, and they were also wrong in concluding that there were less discriminatory ways of achieving their legitimate aim.   The EAT dismissed the appeal.  They concluded that the Tribunal were correct to require the Trust to prove the withdrawal had nothing to do with the reference, and they had not done so.  With regard to the less discriminatory ways of achieving the aim, the EAT held that further steps could have been taken to address the points raised in the reference and to consider reasonable adjustments but this was not done.  The decision to withdraw was tainted by the discriminatory reference.

This case will now go back to the Tribunal to decide how much compensation should be awarded.  If the Tribunal ultimately finds that the second (non-discriminatory) reference given by Ark would have resulted in the job offer being withdrawn anyway then Mrs Lee may receive compensation limited to an injury to feelings award only.

The case does though highlight how important it is to record in detail why a job offer may be withdrawn - had it been clear that the Ark reference alone would have resulted in withdrawal a Tribunal claim might never have been raised. It also highlights the need for managers to consider whether the reference they are reading could be discriminatory, to investigate this further and to consider if the issues raised could be dealt with by making reasonable adjustments.  

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