Was it disability discrimination to withdraw a conditional job offer because of a discriminatory reference?

The EAT has upheld a tribunal’s decision that an employer had committed discrimination arising from disability when it withdrew a conditional job offer because of an unsatisfactory reference (which was discriminatory).

Legal background

It is very common for job offers to be made conditional on the receipt of satisfactory references. If the references are unsatisfactory the employer can generally withdraw the job offer. However, it is very important to avoid basing such a decision on a discriminatory reference, or the prospective employer may itself be guilty of discrimination.

Factual background

The applicant, L, a nurse specialist, had been employed by an NHS trust (SSOT) for nearly five years. L had knee arthritis (which made her a disabled person) and as a result had experienced various issues at work. L subsequently left the employment of SSOT to take up a job with a private healthcare provider (A). At this point, her line manager, M, had provided L with a positive reference which said she would re-employ her. The new private sector role did not suit L and within a month she began to look for another position within the NHS. She was made a conditional offer of employment by another NHS trust (SW).

However, on taking up references, SW was concerned by the references it received from M and A. The reference provided by M (for SSOT) was unduly negative - it failed to give a balanced overview of L’s conduct/performance and instead placed a repeated focus on L’s health issues and absences from work (stating that she had left her post because she could no longer drive or kneel for long periods of time). The reference received from A also placed doubt on L’s ability to cope with aspects of her role (which were very similar to the job she was applying for). On the basis of the unsatisfactory references, SW decided to withdraw its conditional job offer. The relevant decision taker had, under cross-examination, accepted that she had been influenced by both references in deciding to withdraw the conditional job offer.

EAT decision

The EAT upheld the employment tribunal’s decision that, in relying on M’s reference (which was discriminatory), the prospective new employer had committed an act of discrimination arising from disability when it withdrew the conditional job offer. The evidence showed that this discriminatory reference had been more than a minor influence in SW’s decision to withdraw its conditional job offer and SW had failed to prove that it had not discriminated against L.

The tribunal accepted that recruiting an employee capable of the role was a legitimate aim, but concluded that SW could have achieved that aim by less discriminatory means (e.g. by making reasonable adjustments to the role on account of L’s disability).

South Warwickshire NHS Foundation Trust -v- Lee and ors [2018] UKEAT 0287_17_1107