By Andrew Knorpel on 11 February 2016
The recent case of Pnaiser -v- NHS England and Coventry City Council provides yet another reminder to employers the danger of straying from the ‘vanilla’ reference. Ms Pnaiser (the claimant) had been absent on sick leave for several months for reasons connected with her ‘disability’. She was later made redundant and exited Coventry City Council (‘the Council’) under the terms of a settlement agreement which had an agreed, albeit bland, reference.
Ms Pnaiser applied for a job with NHS England and was offered the job which was subject to employment references. Upon request, Ms Pnaiser’s ex-manager (at the Council) provided the recruiting manager of NHS England with the agreed bland reference. However, the reference was provided under cover of an email in which she also offered to discuss the matter further.
Naturally the recruiting manager at NHS England, did what many prospective employers would do, he telephoned the previous employer. During the call, Ms Pnaiser’s ex-manager informed the recruiter at NHS England that the claimant had had significant time off due to sickness, lasting more than 12 months. She went on to say that she would not recommend her for the potential new role.
After this telephone conversation the job offer was withdrawn and consequently Ms Pnaiser brought discrimination claims against both the Council and NHS England.
The EAT held it was clear from the facts that the unfavourable reference was given partly in consequence of the sickness absences, which were a consequence of the disability. Therefore both the giving of the reference and the subsequent withdrawal of the job offer were found to be disability discrimination.
Employers should be aware that, whilst it is possible to have a policy not to provide a reference at all (unless in certain regulated sectors) or when straying beyond a ‘vanilla’ reference, consideration should be given to the risks involved as a result of the duty owed to the departing employee.
- Top tips on managing the risks: Have a reference policy and don’t stray from it. It should cover: What should go in a written reference and what (if anything) might be said in an oral reference;Who can provide the reference – e.g. The HR Manager only;How any settlement agreement agreed reference should be managed and adhered to; How the giving or taking of an oral reference will be recorded.
2. When receiving one – if you wish to withdraw a job offer on the basis of an oral reference, proceed with caution. The contents of that oral reference may be scrutinised by a Tribunal or court at a later date, so be clear of your own reasoning and ensure it is not discriminatory.