The Dangers behind Employment References

An Employment Appeal Tribunal (EAT) case highlights the dangers to employers and prospective employers when seeking and providing references. The EAT held that an employment tribunal erred in its approach when it found that a claimant had failed to establish a case for discrimination arising from disability.

When a disabled person’s job offer was withdrawn, following a negative verbal reference from their former employer, the tribunal should not have focused on whether there were neutral reasons why the manager providing the reference had formed a negative view of the individual. Rather, the tribunal should have considered whether sickness absences, which arose out of disability, played a part in that negative assessment.

This case highlights the inherent risk in employers providing a verbal reference that is separate to, and which contradicts, a written reference. The recipient of a reference is in a very difficult position once it has received a reference which compromises its confidence in the recruit, but which is potentially tainted by discrimination. Withdrawing the job offer is likely to result in a claim, but proceeding with the offer where the reference has not been positive is also less than ideal.

When a disabled person’s job offer was withdrawn, following a negative verbal reference from their former employer, the tribunal should not have focused on whether there were neutral reasons why the manager providing the reference had formed a negative view of the individual. Rather, the tribunal should have considered whether sickness absences, which arose out of disability, played a part in that negative assessment.

This case highlights the inherent risk in employers providing a verbal reference that is separate to, and which contradicts, a written reference. The recipient of a reference is in a very difficult position once it has received a reference which compromises its confidence in the recruit, but which is potentially tainted by discrimination. Withdrawing the job offer is likely to result in a claim, but proceeding with the offer where the reference has not been positive is also less than ideal.

Pnaiser v NHS England and Coventry City Council UKEAT/0137/15

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