Disability discrimination: discriminatory reference
Case South Warwickshire NHS Foundation Trust v Lee (2018) UKEAT/0287/17/DA
Facts L, a nurse, suffered from arthritis, a disability which led to absences and issues at work. She left her job at S to take up a role with a private healthcare provider. She left this post soon after and was offered a role with South Warwickshire NHS Foundation Trust. This took up references from both former employers, and both were unsatisfactory – one for the ability to do the work, and one which highlighted sickness absence issues. The offer was withdrawn and L brought claims of disability discrimination.
The ET found that the reference received from S was imbalanced and negative, and both the reference and the withdrawal of the job offer were unfavourable treatment, and were “something arising in consequence of” her disability. The burden of proof had shifted to S to show there was no discrimination, and that burden had not been discharged. The Trust had constructive knowledge of L’s disability, and the burden of proof in that case had also passed to the Trust to show that the withdrawal of the job offer had nothing to do with the references. The Trust relied on the fact that the decision was justified in that there was a legitimate aim to recruit an employee who was capable in all respects of carrying out the role. The ET was not satisfied that withdrawing the offer was a proportionate means of achieving a legitimate aim. The Trust appealed to the EAT.
Decision 1.The appeal was dismissed.
The withdrawal of the offer was at least in part due to a discriminatory reference, and the reference had tainted the decision making. The Trust could have addressed the issues raised by making further efforts to speak to S, or by making reasonable adjustments.