The risks of discriminatory references
References must be true, fair and accurate and, where they fall below this standard, can result in being subject to claims for negligent misstatement, malicious falsehood or, in the most serious circumstances, defamation. Many employers dodge this risk (and save time) by providing standard references which only include dates. However, in some sectors, such as healthcare and education, more detailed references may be required for safeguarding reasons.
Civil claims aren’t the only risk that an employer runs when providing a detailed reference. In circumstances where issues relating to disability form part of the reference, an employer can find themselves before an Employment Tribunal if their subsequent actions potentially constitute discrimination.
The recent case of South Warwickshire NHS Foundation Trust v Mrs S Lee and Others considered, firstly, if the act of providing an untrue reference can itself be an act of disability discrimination, and secondly, whether not employing someone due to a discriminatory reference amounts to an act of disability discrimination.
The claimant was a nurse specialist for Staffordshire and Stoke NHS Trust (S&S Trust). The claimant had arthritis of the knee and was disabled for the purposes for the Equality Act. In light of her disability, the claimant had problems at work and sought to reduce her hours. She applied and was successful in securing a job in the private sector with Ark. Her line manager at S&S Trust provided a reference which stated that her attendance was average and that she had a good level of competency. The reference also emphasised that the employer would re-employ the claimant if the opportunity arose.
The claimant did not enjoy or thrive in her new role and, less than a month after joining the private sector, applied for a position at a South Warwickshire NHS Trust (SW Trust). The claimant was successful at interview and SW Trust offered her the position subject to satisfactory references.
In accordance with the relevant safeguarding requirements, SW Trust requested full references from both Ark and S&S Trust. In Ark’s reference they stated that the claimant had excellent attendance and good transferable skills, but that she struggled with the pace of work and could not maintain a work/life balance. The S&S Trust reference was not only unduly negative but inaccurate. The reference exaggerated the claimant’s absences (which were due to her arthritis) and was contradictory to the reference provided to Ark only a month previously. Unsurprisingly, SW Trust withdrew the claimant’s job offer due to unsatisfactory references.
The claimant believed that the reference provided by S&S Trust was discriminatory. She also believed that SW Trust’s decision to not employ her on the basis of the reference was a further act of discrimination.
The Tribunal agreed with the claimant. It held that providing an untrue reference that dishonestly stated that the claimant was frequently absent due to her disability was an act of unfavourable treatment arising from a disability – a contravention of section 15 of the Equality Act. Additionally, the Tribunal held that SW Trust’s rejection of the claimant was at least partially influenced by the discriminatory reference which, in itself, was a form of unfavourable treatment.
SW Trust appealed the decision but the appeal was rejected. The EAT agreed with the Tribunal that the decision not to employ the claimant was at least partially influenced by the discriminatory reference. The EAT also added that not employing the claimant was not a proportionate means to achieve a legitimate aim. SW Trust had no evidence to show that they had considered reasonable adjustments as an alternative to withdrawing the offer, and so there was no defence to the discriminatory act.
Key points for employers to consider:
- Providing a false reference that makes statements about disability-related absence is an act of discrimination.
- A reasonable adjustment for a disabled employee is not to count disability-related absence towards any absence policy.
- On receipt of a reference from a previous employer, it is important to give consideration to whether it could be discriminatory. If it is, tread carefully and remember that not hiring the applicant may not be a proportionate means of achieving a legitimate aim, unless full consideration has been given to reasonable adjustments to facilitate the individual’s employment.