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Negative verbal reference was discrimination arising from disability
In Pnaiser v NHS England and Coventry City Council, the EAT has overturned an Employment Tribunal decision which found that a Claimant had not established a prima facie case of discrimination arising from disability. The EAT considered that the Tribunal was wrong in the way in which it approached the burden of proof.
The Claimant, who is disabled, applied for and was offered a job, which was subsequently withdrawn following a verbal reference from the former employer which was negative. The Claimant therefore issued a claim for discrimination arising from disability on the basis that the verbal reference was negative because of the absences from work caused by the disability and so had caused the withdrawal of the job offer.
The EAT considered that the Tribunal should not have looked at whether there were neutral reasons why the manager providing the reference had formed a negative view of the individual but instead should have considered whether the sickness absences which arose out of a disability formed a part of that negative assessment. The EAT considered that this was a case where they clearly could have done so and as such, on the face of it, a case was made out for discrimination. It also held that this was one of the rare cases where it was possible to conclude that unlawful discrimination had taken place. The appeal was therefore allowed and a substituted finding of fact was made.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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