If you don’t have anything nice to say….

In a recent disability discrimination case, a Claimant worked for Coventry City Council. She was disabled within the meaning of the Equality Act 2010 (EqA). In 2011, whilst being managed by Ms Tennant of the Council, the Claimant had two operations resulting in significant time off work. In 2012, the Claimant was then seconded to a more senior role, but was again absent for several months. In March 2013, due to operational reasons, the Claimant suggested she be considered for redundancy and a settlement agreement incorporating an agreed form of reference was signed.

The Claimant applied for a job with NHS England in July 2013 which she was offered and accepted, subject to satisfactory references. The recruitment manager for NHS England sought to obtain four references using its pro-forma reference form, one of which was from the Council. Ms Tennant provided the reference on behalf of the Council as agreed in the settlement agreement which, as you would expect, contained no details of her absence from work.

Ms Tennant’s mistake was that she sent the agreed reference in an email offering to discuss the matter further with the recruitment manager. Because the reference was so vague and was not in the required pro-forma, the recruitment manager phoned Ms Tennant who told him that the Claimant had had significant time off work over a 12 month period. Having been given further detail of the role that the Claimant applied for with NHS England by the recruitment manager in this conversation, Ms Tennant also advised the recruitment manager that she would not employ the Claimant in such a role as she didn’t think the Claimant would be able to undertake it; she implied that the Claimant’s previous absence had had an adverse effect on her performance. This statement was denied by Ms Tennant.

Following this conversation, NHS England withdrew the job offer.

The Claimant brought a claim in the Employment Tribunal for discrimination arising from her disability, which was unsuccessful.

On appeal, the EAT considered, on the facts, that the unfavourable reference was given partly because of the Claimant’s sickness absence, which was almost entirely as a consequence of her disability. They asked whether the fact that Ms Tennant gave a negative reference in a conversation where she expressed concern about the Claimant’s sickness absence (when she knew that the absence was related to the Claimant’s disability), were together sufficient to show that discrimination arising from a disability had been made out.

The EAT found it had and therefore that the burden of proof should pass to the Respondents, and for them to then demonstrate that her absence was not part of their assessment of the Claimant’s suitability for the role and the withdrawal of the job offer. Neither Respondent could do this and so the EAT substituted a finding of unlawful discrimination against both Respondents under S15 of the EqA 2010.

What does this mean for you or your business?

As a prospective employer, you should be aware that whilst the value to you of a verbal reference usually far outweighs that of a generic written reference, if you withdraw a job offer on the basis of a verbal reference, particularly one that relates to protected characteristics under the EqA, you run a risk of a discrimination claim being brought against you.

As a previous or current employer, you should remember that you owe a duty to both an employee and a prospective employer to ensure a reference is true, accurate and fair. Inaccurate or misleading content could trigger a claim for negligent misstatement. Departing from an agreed reference is likely to land you in breach of contract. It may also be discriminatory. 

In this case, the two Respondents could not agree the content of the conversation between Ms Tennant and the recruitment manager, his version of the conversation being far more damaging than hers. This by itself demonstrates nicely one small facet of the risks of employers offering to speak to prospective employers verbally rather than in writing.

What do you need to be doing now?

It should be noted that in this case, the EAT clarified that Ms Tennant’s motive for making the comments were irrelevant and the fact that she had not intended to discriminate could not be taken into account. Make sure that those employees who give references are fully aware of what can be said in a reference and that verbal discussion with prospective employers regarding a current or past employee should be avoided if possible.

Consider perhaps, having a policy to ensure references are consistent or that all references go through HR before being sent out. If a reference is agreed under a settlement agreement, make it clear on the employee’s personnel file that this agreed reference should not be departed from.

Whilst it is expected that an employer will provide some form of reference to departing employees, there is no legal obligation on employers to provide a reference. If you want to give a brief, factual reference setting out start dates, end dates and positions held by an employee, this is acceptable. Make it clear in that reference however, that it is company policy to do this so that no negative inferences are drawn. If you wish to give more of a complete reference, ensure the reference is factually correct, does not mislead and is within the referee’s specific knowledge.

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.