Negative References and Disability Discrimination

Thanks to Karen Jackson of didlaw for preparing this case summary

Did a tribunal err in its approach to the burden of proof when it required a Claimant to show that the only inference which could be drawn from a negative oral reference was that discrimination had taken place?

Yes, held the EAT in Pnaiser v NHS England and Coventry City Council.

Focussing on paragraph 122 of the employment tribunal judgment, the EAT found that the employment tribunal had imposed an impermissibly high hurdle on the Claimant and one which went beyond the requirements of sections 136(2) and (3) of the Equality Act to raise merely a prima facie case.

The employment tribunal had also failed to consider whether there was a link between Ms Pnaiser's sickness absences at the Council and her manager Ms Tennant's adverse assessment of her suitability for a role with NHS England due to disability-related sickness absence.

The EAT found that the Claimant had made a prima facie case which shifted the burden to the Respondents and substituted findings of unlawful disability discrimination pursuant to section 15.

On the EAT's findings the unfavourable oral reference was given partly in consequence of sickness absence which arose from disability and was therefore in breach of section 15.

The case was remitted for remedy.