In our recent blog Employment References – What To Expect When Expecting A Reference we looked at the standard of care expected of employers when they go beyond a basic factual reference and into any level of detail. The duty to give a reference which is ‘fair, truthful and accurate’ creates a potential liability when employers give a reference but what about prospective employers who, following receipt of a ‘bad’ reference, want to withdraw a job offer?

This month the Employment Appeal Tribunal considered discriminatory references in the case of South Warwickshire NHS Foundation Trust v (1) Lee, (2) Staffordshire & Stoke on Trent Partnership NHS Trust, (3) Mason (UKEAT/0287/17/DA).

In this case the job applicant suffered from arthritis in her knee and was disabled. South Warwickshire NHS Foundation Trust offered her a job which involved managing a district nursing team subject to receiving two satisfactory references from her former employers. Unfortunately both references were unsatisfactory and the job offer was withdrawn. Upon hearing the case the Tribunal found that one of the job references, but not the other, was unduly negative and inaccurate because of disability related absences. The Tribunal decided that the South Warwickshire NHS Foundation Trust was liable for discrimination under section 15 of the Equality Act 2010 because the discriminatory reference had had more than a minor influence on the decision to withdraw the job offer. The point that the second reference, which was negative but not discriminatory, may on its own have been sufficient reason to withdraw the job offer did not mean that the prospective employer was not liable for discrimination (although it is likely to be highly relevant to the value of the claim).

The lesson for prospective employers from this case is that before withdrawing a job offer following receipt of an unsatisfactory reference, it would be sensible to consider the following:

  • Whether any negative comments may relate to disability.
  • Make sure that any negative comments are properly analysed. This could involve asking the referee and/or the job applicant for more information.
  • Consider any reasonable adjustments which could be made to address the difficulties which the job applicant may find in the new role.
  • If the job offer is withdrawn make a clear record of the reason.

In the above case, the prospective employer may have avoided the claim if it had made a clear record that the decision to withdraw the job offer was solely based on the second reference which was unsatisfactory but crucially not discriminatory.


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