Any information given in references about an employee’s disability or number of days’ sickness absence due to a disability must be dealt with sensitively. This Employment Appeal Tribunal judgement shows why.

In, Pnaiser v (1) NHS England (2) Coventry City Council, 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, had a disability which resulted in significant levels of sickness absence. She was made redundant by Coventry City 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 in which she had stated 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 Subsequent to the receipt of a reference from the Council, the job offer was withdrawn by NHS England.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. The Employment Tribunal (ET) dismissed the claim, stating that 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. The EAT stated that the ET should have asked itself whether the line manager 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 the line manager 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. The line manager 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. The recruiting officer had knowledge of the disability and the EAT found that the unfavourable treatment done by him was because of the reference.