Ms Pnaiser, who was disabled within the meaning of the Equality Act 2010, was employed by Coventry City Council (the Council). In 2011, while managed by Ms Tennant, she had two operations which resulted in significant absences from work. While on secondment in 2012 she had a further period of absence. During her time with the Council she received a positive appraisal and her application for secondment was endorsed. She was then made redundant in March signing a settlement agreement which included an agreed reference. The reference was not on the Council's standard template style.
In July 2013 Ms Pnaiser applied for and was subsequently offered a job with NHS England subject to satisfactory references. The recruiting Manager of NHS England, Professor Rashid, requested a template reference from the Council. Ms Tennant provided the reference which had been agreed as part of the settlement with the claimant under cover of an email offering to discuss the matter further. Professor Rashid, noticing that the reference was not on the requested template style, phoned Ms Tennant on 16 September 2013 and sought further clarification. Ms Tennant told Professor Rashid that the claimant had had significant time off work in her previous role and implied that the absences had adversely affected her performance and that the claimant might struggle to cope with pressure.
Following the verbal reference, NHS England withdrew the job offer from the claimant. The claimant brought a claim in the employment tribunal against the Council and NHS England, alleging she had been discriminated against because of something that arose from her disability - the absences referred to by Ms Tennant when giving the verbal reference. The claim was dismissed by the Tribunal. However, on appeal the EAT held that the Tribunal had taken the wrong approach when considering whether a prima facie case had been by the claimant. The EAT went on to find that there were facts from which the Tribunal could infer that the unsuitability comments were made partly because of the absences. They went on to hold that unlawful discrimination had taken place.
For employers the lesson to be learnt from this case is the risk associated with the giving of references. Careful consideration should always be given to the content of any reference, or potentially whether there is any reason why a reference should not be given. In particular, there are very obvious risks of deviating from the terms of an agreed reference, either verbally or in writing.