Hiring an employee with a poor attendance record is not something any employer wants to do and understandably, if they get a pre-warning they will want to take the easiest route to avoid employing that individual. If the job offer has not been accepted yet and the individual has not had their first day at work, the most trouble-free way might be to simply withdraw the offer. But is it? As we saw from the recent case judgment in West v Yorkshire Ambulance Services NHS Trust – not necessarily.
Firstly, many employers make an offer of employment subject to satisfactory references and then withdraw it if the references do not turn out to be satisfactory - this is a standard practice. However, if an unconditional offer is made and accepted, which is then withdrawn, this may put you at risk of breach of contract. Furthermore, a risk arises for both the ex-employer and the prospective employer if any information given in a reference is discriminatory. This is because the protection granted by the Equality Act 2010 extends to beyond the actual employment – individuals are provided with protection during the early stages of recruitment before employment has commenced as well as after employment has ended.
In the case of West v Yorkshire Ambulance Services, the claimant’s offer of employment was withdrawn after a reference from her previous employer revealed that she had been on long-term sick leave for 18 months before her employment was terminated.
Similarly, in the EAT case of Pnaiser v (1) NHS England (2) Coventry City Council an offer was withdrawn after the ex-employer stated, in the reference, that she was unable to give a reliable opinion on whether the claimant would be capable of doing the job because she had had significant time off. The ex-employer was aware that the time off was related to a disability which the claimant had. By providing that reference, the ex-employer carried out an act of disability discrimination against the claimant, and by withdrawing the offer the prospective employer did, too.
If you receive an unsatisfactory reference, remember that it is lawful to withdraw an offer of employment, as long as this decision is not based on any information related to any disabilities the applicant might have. If it is, then both you and the previous employer may be liable for discrimination arising out of a disability.