The Employment Appeal Tribunal has ruled that both the author of and the receiver of a written reference regarding a disabled job applicant committed acts of discrimination arising from a disability when the applicant was refused a job based on the content of the reference.

The Claimant, Pnaiser, was employed by Coventry City Council. She had a disability which resulted in significant levels of sickness absence. Pnaiser had received positive work appraisals and the Council had no concerns with her performance.

She was made redundant from the Council and offered a role with NHS England subject to the provision of satisfactory references.  Notes from the interview described Pnaiser as an “excellent candidate”. References were sought from Pnaiser’s line manager, T, and she provided an agreed template which did not match the pro forma supplied by NHS England. The interviewer, R, subsequently made a telephone call to T to gain more information. The ET found that, in that phone call, T told R that she had difficulty in giving an appropriate reference for the applicant as she had had significant time off work. Subsequent to the receipt of a reference from the Council, the job offer was withdrawn by NHS England.

Pnaiser brought claims of disability discrimination at Employment Tribunal. It was alleged that the Council had discriminated against Pnaiser because of the provision of the negative reference which led to the withdrawal of the job offer; and also that NHS England had discriminated against her because they had withdrawn the job offer on the basis of the reference. Both acts, Pnaiser asserted, stemmed from her disability related absence and therefore amounted to discrimination arising from disability.

The Employment Tribunal (ET) found that the claimant had not made out a prima facie case of discrimination for which the respondents must answer because the reason for the withdrawal was T’s consideration that the claimant could not do the role having heard the description of it.

The Employment Appeal Tribunal (EAT) overturned the ET’s decision. It had to consider what was in the mind of the person making the decision but it had applied a test requiring discrimination to be the only inference that could be drawn from events.  The EAT stated that the ET should have asked itself whether T gave a negative reference where she mentioned Pnaiser’s significant absence and whether that and her knowledge of and concerns about the history of absences were together sufficient enough to make out a prima facie case of discrimination meaning that there was a case to answer.

The EAT admitted it was rare for an EAT to substitute its own view for the fact finding of the ET but that it must do in this case. There were facts, it said, that could infer the reason T made the comments that the claimant was unsuitable was her absence level. Her knowledge of the claimant’s disability then made this enough to make out a prima facie case of discrimination. T had not questioned the claimant’s competence and gave evidence that her concerns were due to absence and not competence. From the facts found, it could not be excluded that absence was part of the reason for the unfavourable treatment.

NHS England was also found to have acted in a discriminatory manner. R had knowledge of the disability and the EAT found that the unfavourable treatment done by him was because of the reference. No defence of justification was put forward by either Respondent and therefore the EAT substituted the ET’s decision in that Pnaiser had suffered discrimination arising from a disability by both employers.