Disability Discrimination and References

Author: Keith Potter

A further illustration of the pitfalls associated with allegations of disability discrimination arises from a recent Employment Appeal Tribunal (EAT) case involving the giving of a written and verbal reference.

The employee was employed by a local authority as a manager. She was disabled and over a period of about 2 years she had some extended absences. In the following year she was made redundant. She entered into a settlement agreement with the employer, which included agreed wording for a written reference.

Subsequently she applied for a job with a part of the NHS. It involved more responsibility than she had had in her positions with the local authority. The job was offered to her, subject to a satisfactory reference being obtained. A reference request was made by the NHS, using the NHS’s standard template for references. A written reference in the agreed form was sent by the local authority to the NHS. A covering email was sent with the agreed reference offering to discuss the matter further. As the local authority had not used the NHS template when responding to the reference request, the NHS took up the offer to discuss the reference.

During the conversation the local authority manager told the NHS manager that the employee had had significant time off work in her previous role. The NHS manager outlined the duties of the new role to the local authority manager. The latter then indicated that she would not recommend the employee for the new role. At the Tribunal hearing there was some dispute about exactly what she had said. The Tribunal found that the local authority manager had implied that the employee's previous sickness absences had adversely affected her performance and that the employee might struggle to cope with pressure. Following this conversation, the NHS withdrew the job offer. The employee brought a claim of disability discrimination against both the local authority and the NHS.

The Employment Tribunal rejected the employee’s claim but on appeal the EAT reversed this decision. The EAT decided that it was clear on the undisputed facts that the unfavourable reference was given partly in consequence of the sickness absences, which were a consequence of the disability. Accordingly, the EAT ruled that the employee had been the victim of unlawful discrimination.

This case is a reminder of the dangers to employers and prospective employers when providing and seeking references. Most employers have a firm policy of sticking either to their standard form reference wording (normally just confirming the dates when employment started and ended and the position held) or to wording which is agreed as part of a settlement agreement. Occasionally, there may be industry-specific reasons which make it undesirable to provide an agreed reference in the first place. Providing a verbal reference in the form of comments which contradict a written reference always gives rise to the risk of a claim, even if the comments are unconnected with any disability-related matter. Where a comment is made about something which is clearly a consequence of disability, a claim becomes highly likely.

Contact Keith Potter either by telephone on 01306 502329 or email: k.potter@downslaw.co.uk to discuss this issue further.