Good morning, another Friday has rolled round which means it’s time for another dose of case law! Last week we had three cases; one on religion/belief discrimination, another on the gig economy and a procedural case on appeal deadlines. This week has been what you might call a slow news week and we have just the one case for you. This case concerns disability discrimination and references.

References must be true, fair and accurate. References that aren’t can result in the referee being subject to civil claims (in the County or High Court) for negligent misstatement, malicious falsehood or even defamation depending on the severity of the inaccuracies and the intentions of the referee.

To avoid problems and save time, many employers just give employment dates as a standard reference because there is no way that said dates cannot be a true, accurate and fair statement. However, in some sectors, such as teaching and healthcare, detailed references are required for safeguarding reasons.

Like all forms of discrimination, disability discrimination is defined in the Equality Act 2010. The discrimination can be direct, indirect, harassment or victimisation. For disability discrimination, there are two further types of discrimination.

The first is s15 unfavourable treatment arising from a disability. This is wide ranging and includes numerous acts of unfavourable treatment. An employer can defend an act of unfavourable treatment if they can show that the treatment is a proportionate means of achieving a legitimate aim. For example a hospital will not employ a surgeon with a motor-neuron condition that causes them to shake because of the legitimate safety risk that would pose to patients.

The second is covered by s20, duty to make reasonable adjustments. This is where an employer should provide aids, alter policies or alter their premises to address the disadvantages disabled employees face at work. This can include providing ergonomic keyboards, different coloured screens, relaxing the capability/absence policy or creating disabled parking spaces/permits.

South Warwickshire NHS Foundation Trust v Lee

The question this week is:

Can providing an untrue reference be an act of disability discrimination?

Does not employing someone due to a discriminatory reference amount to an act of disability discrimination?

Ms Lee, the Claimant, was a nurse specialist for Staffordshire and Stoke NHS Trust. The Claimant’s manager was Ms Mason. The Claimant had arthritis of the knee and was disabled for the purposes of the Equality Act 2010. This disability caused the Claimant problems at work and she wished to reduce her hours.

The Claimant applied for a private practice role with a company called Ark. Ms Mason gave Ark a reference that stated the Claimant’s attendance was average and her competency was good. She also stated that she would re-employ the Claimant.

The Claimant joined Ark but did not enjoy or thrive in the role. She applied for a position with South Warwickshire NHS Trust, the Respondent, less than a month after joining Ark. The Claimant was successful at interview and the Respondent offered her a position subject to satisfactory references.

In Ark’s reference to the Respondent they stated the Claimant had excellent attendance and good transferable skills. However, they did say the Claimant struggled with the pace of the work and could not maintain a work/life balance.

Ms Mason, the Claimant’s manager at Stoke NHS also gave the Respondent a reference. Overall the reference was negative and inaccurate and Ms Mason repeatedly made exaggerated references to the Claimant’s absences, which were due to her arthritis. It also contradicted the reference she provided to Ark a month previously.

The Respondent, after considering the contents of both references, decided to withdraw the Claimant’s job offer due to unsatisfactory references. The Claimant believed the reference was discriminatory, as was not employing her because of it. She initiated claims against the Respondent, Ms Mason and Stoke & Stafford NHS Trust.

The ET allowed the claims. It held that providing an untrue reference that falsely suggested there was frequent disability related absence was an act of unfavourable treatment arising from a disability under Section 15 of the Equality Act.

The ET also held that the Respondent’s decision not to employ the Claimant was at least partially influenced by Ms Mason’s reference. That in itself was a form of unfavourable treatment under Section 15 and that claim was also allowed.

The Respondent appealed, it argued the decision not to employ was influenced by the Ark reference and any indirect discrimination was to ensure the Claimant was suitable for role in accordance with healthcare regulations.

The EAT rejected the appeal. It held that the ET had been right to find the decision not to employ was at least partially influenced by the Mason reference. It added not employing the Claimant was not a means to achieve a legitimate aim.

The Takeaway Point:

Yes, providing a false reference that makes numerous statements about disability related absence is an act of discrimination under Section 15. A reasonable adjustment for a disabled employee is not to count disability related absence towards any absence policy. Exaggerating that absence even further is also discriminatory.

In this case the Claimant could (and might) have also brought civil claims against the employer for the false reference. Depending on the type of claim, this could be a High Court matter with heavy financial liability for the employer.

Additionally, not employing someone because of a discriminatory reference is in itself an act of discrimination. Given discrimination claims have an uncapped injury to feeling award the employers in this case will be exposed to further financial liability.