Withdrawing a job offer due to a poor reference
This is a situation that we are asked about on a routine basis and a report of a recent case sets out some key steps to consider if you find yourself faced with a similar decision.
The case relates to South Warwickshire NHS Foundation Trust v Lee and others, at the Employment Appeal Tribunal (EAT) which held that the decision to withdraw a job offer that was at least partially influenced by a reference that focused on the applicant’s sickness absence levels was discriminatory.
Background to the case
Mrs Lee was employed as a nurse by Staffordshire & Stoke on Trent Partnership NHS Trust for almost five years. She had absences because of knee problems, which were accepted to amount to a disability. Mrs Lee left to take up an opportunity with a private company, Ark, but after one month decided to look for another position within the NHS.
Mrs Lee applied for a job at South Warwickshire NHS Foundation Trust, which made her a conditional job offer. They then applied to both Staffordshire & Stoke Trent Partnership NHS Trust and Ark for employment references.
South Warwickshire were concerned when they received a reference from Ark, which questioned Mrs Lee’s ability to cope with challenges similar to those she would face in her new role. The reference from Staffordshire & Stoke raised Mrs Lee’s health problems and her sickness absence history.
South Warwickshire contacted both referees for further clarification. It was able to speak to the referee at Ark, who confirmed her criticism of Mrs Lee’s skills. However, South Warwickshire was unable to contact the referee at Staffordshire & Stoke.
South Warwickshire withdrew the conditional offer of employment to Mrs Lee, explaining that her references had been unsatisfactory.
Mrs Lee brought a claim in the employment tribunal for discrimination arising from disability under s.15 of the Equality Act 2010 against the author of the reference at Staffordshire & Stoke and both NHS trusts.
Unusually, the employer in this case received one discriminatory reference and one non-discriminatory reference.
What does this mean for employers?
If you withdraw a job offer based on a job reference that shows a poor level of attendance you may face a claim under s.15 of the Equality Act 2010.
If, in a similar situation to the one described, you were to receive a discriminatory reference that could taint the recruitment process, you should “go the extra mile” before withdrawing the job offer.
This includes discussing the reference with the referee and any potential reasonable adjustments with occupational health and the applicant.
Section 15 makes it unlawful for an employer to treat an employee unfavourably because of something “arising in consequence of” his or her disability where the employer knows, or could reasonably be expected to know, that the employee has a disability. An employer can successfully defend a claim if it can justify the unfavourable treatment on the basis that it was a proportionate means of achieving a legitimate aim.
The employment tribunal upheld Mrs Lee’s claim. It was satisfied that Staffordshire & Stoke’s reference was unfavourable treatment because it placed an unnecessary emphasis on Mrs Lee’s absences, when a reference should provide a balanced overview of an individual’s capabilities. The tribunal described the reference as “unduly negative and inaccurate”.
The employment tribunal held that, before withdrawing the job offer, South Warwickshire could have:
- considered what reasonable adjustments could be made to enable Mrs Lee to undertake the role;
- made further efforts to speak with the referee at Staffordshire & Stoke; or
- discussed the contents of the reference with Mrs Lee.
South Warwickshire went on to challenge the first decision in the EAT, which rejected the appeal. The EAT concluded that, had the decision-maker at South Warwickshire taken the alternative steps envisaged by the tribunal, it is likely that it could have discounted much of the content of Staffordshire & Stoke’s reference. At that stage, South Warwickshire would have been left with the decision as to whether or not the reference from Ark was sufficient to withdraw the job offer.
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