In the recent case of Pnaiser v NHS England and Coventry City Council, the Employment Appeal Tribunal considered whether a reference which referred to the claimant’s poor attendance record, and the consequent withdrawal of an employment offer, could amount to disability discrimination.

Facts

The claimant, Dr Pnaiser, suffered from a serious medical condition which necessitated her having a number of operations and undergoing long term medical treatment. As a result she had a significant number of sickness absences during her employment as a Lifestyle Risk Management Services Implementation Manager with Coventry Primary Care Trust. In late 2012 Dr Pnaiser volunteered for redundancy and a short but positive reference was agreed as part of a settlement agreement finalised in March 2013.

When Dr Pnaiser applied for a new role as Programme Manager with NHS England in July 2013, her old line manager, Ms Tennant, (previously Deputy Director of Public Health at the Trust and now working for Coventry City Council following a TUPE transfer) provided the agreed reference under cover of an email in which she offered to discuss the matter further. In an ensuing telephone conversation with the recruiting doctor, Professor Rashid, Ms Tennant stated that she had some difficulty in giving an appropriate reference as Dr Pnaiser had had significant time off work in her previous role and, when asked whether Dr Pnaiser was suitable for the role of Programme Manager, that she would not employ Dr Pnaiser in the role. Ms Tennant did not explain and Professor Rashid did not enquire about the reason for the significant time off work.

Professor Rashid also received a reference from a previous employer who confirmed in answer to a standard question about sickness absence, that the number of days sickness was not readily answerable since Dr Pnaiser had undergone two surgical procedures which were the cause of her absence during her last 12 months of employment ending in June 2010.

As a result of the conversation with Ms Tennant, Professor Rashid withdrew the offer of employment.

Dr Pnaiser’s claim before the Employment Tribunal was that she had been treated unfavourably by both Coventry City Council and NHS England because of something arising as a consequence of her disability. She argued that Ms Tennant had provided a reference in which the comments about her significant time off work and her unsuitability for the role related directly to her disability; and that Professor Rashid had withdrawn the offer of employment as a direct result of those disability related comments in circumstances where he knew or ought reasonably to have known that she was disabled.

Dr Pnaiser’s claim failed at Employment Tribunal but on appeal, the EAT found in her favour.

EAT Decision

In relation to the claim against the Council, the EAT found that Ms Tennant’s conclusions about Dr Pnaiser’s unsuitability for the new role were significantly influenced by Dr Pnaiser’s absences, which were disability related. In reaching this conclusion it was noted that Ms Tennant had previously given Dr Pnaiser positive appraisals, had provided a positive agreed reference, knew about Dr Pnaiser’s significant absences and had commented that she could not judge Dr Pnaiser’s potential to fill the new role because of concerns about absence not competence.  It was clear that Dr Pnaiser’s disability related absence was (consciously or unconsciously) a reason in Ms Tennant’s mind for giving the negative reference and in the absence of any other explanation, the EAT concluded that Dr Pnaiser had been treated unfavourably as a consequence of her disability.

In relation to the claim against NHS England, the EAT concluded that, having been told that Dr Pnaiser had undergone two surgical procedures prior to 2010 and that she had taken significant time off work in her most recent role, Professor Rashid was on notice of Dr Pnaiser’s disability. He could not rely on the fact that Ms Tennant had not explained the reason for the significant time off work as it would have been reasonable for him to have made further enquiries.

Given that the negative content of Ms Tennant’s reference was related to Dr Pnaiser’s disability and that Professor Rashid had withdrawn the employment offer as a result of that reference, the EAT concluded that he had treated Dr Pnaiser unfavourably because of something arising in consequence of her disability.

Neither of the respondents put forward any argument about justification of the unfavourable treatment so the EAT made a finding of unlawful discrimination against both respondents.

Comment

This case demonstrates just how wide is the scope of the protection for disability-related discrimination. There was no finding, and nor did there need to be any finding, that Ms Tennant had a discriminatory motive for providing the negative reference, and it would seem that she went out of her way to avoid expressly linking her comments about suitability with the claimant’s disability. However, the mere fact that one of the reasons for giving the negative reference was the claimant’s level of sickness absence meant that Ms Tennant had discriminated against the claimant. Perhaps even more surprising is the finding that the recipient of the reference, Professor Rashid, discriminated against the claimant by withdrawing the offer of employment on the basis of Ms Tennant’s comment that the claimant was not suitable for the role. Professor Rashid’s decision was effectively tainted by the fact that the comment was found to be discriminatory. Because neither the giver nor the recipient of the reference addressed the issue of the claimant’s disability head on, no consideration was given to whether the decision to make the negative comments and/or to withdraw the employment offer could be justified as a proportionate means of achieving a legitimate aim, and so once it had been established that there had been unfavourable treatment arising as a consequence of the claimant’s disability, the finding of discrimination was inevitable.

Pnaiser v NHS England and Coventry City Council UKEAT/2015/0137