We have reported in earlier newsletters about the dangers to an employer of giving a reference relating to an outgoing employee. The point of a reference is for a potential new employer to find out about a prospective employee from a past employer. However, the potential liability for giving a poor or possibly discriminatory reference is such that many employers only make the most basic comments.
A recent employment case reminds us of the pitfalls for a prospective employer if they withdraw a job offer on the basis of a reference.
A nurse who suffered from arthritis had absences from work as a result of her disability. She moved to a private healthcare provider but soon decided to move jobs to another healthcare trust. The prospective new employer took up references from her previous two employers. One reference pointed out sickness and absence concerns and the other questioned her ability to carry out the role. The prospective employer checked the references with both past employers. As a result of these references, the new job offer was withdrawn and the nurse brought a discrimination claim to the Employment Tribunal (ET) against the prospective employer and her first claim was successful. It was accepted that the references had influenced the deduction to withdraw the job offer. The ET held that withdrawal of the job offer was not proportionate and that the withdrawal of the offer was unfavourable treatment arising as a consequence of her disability. The prospective employer appealed.
The Employment Appeal Tribunal (EAT) dismissed the appeal.
The withdrawal of the job offer had been partly as a result of a discriminatory reference. The prospective employer had not shown that there was no discrimination. The prospective employer did not make further enquiries or attempt to make reasonable adjustments.
This decision is an important reminder to employers on both sides of the equation. It is important not to give a reference that is discriminatory. It is also important for a prospective employer to attempt to challenge what might be an inaccurate or discriminatory reference.
To discuss this or any other employment related issue, contact us.