In Pnaiser v (1) NHS England (2) Coventry City Council, Ms Pnaiser brought claims of discrimination arising in consequence of her disability under S.15 of the Equality Act 2010 (EA 2010). In relation to the Council, Pnaiser alleged that the giving of a negative reference by Ms Tennant, which led to the withdrawal of a job offer, was unfavourable treatment as a consequence of her three fairly lengthy disability-related absences. She also alleged that the withdrawal of a job offer by Prof Rashid on behalf of NHS England on the basis of the reference was unfavourable treatment because of something arising in consequence of her disability.

A tribunal dismissed both claims on the basis that Pnaiser failed to establish a prima facie case so as to shift the burden of proof to NHS England and the Council to provide non-discriminatory explanations for their actions. The EAT allowed Pnaiser’s appeal, holding that the ET had required Pnaiser to show that the ‘only inference’ that could be drawn was a discriminatory one before it could conclude that the burden shifted. That test was an impermissibly high hurdle. What the ET should have asked itself was simply whether the giving of a negative reference and the withdrawal of the job offer were consequences of Pnaiser’s disability.

If the ET had properly applied S.15 EA 2010 and the burden of proof in S.136, the undisputed evidence should have led to the inevitable conclusion that the unsuitability comments about Pnaiser in the reference were made by Tennant because of Pnaiser’s disability-related absences and Prof Rashid withdrew the job offer because of the unsuitable reference. The burden of proof should then have shifted to the employers to show that disability-related absence played no part whatever in the reasons Pnaiser was treated in the way she was. Neither employer sought to justify their actions and the EAT substituted findings of unlawful discrimination against both.

This case highlights the dangers to givers and receivers of references where details about disability-related absence are involved. Legal advice should be taken, not just to avoid potential discrimination, but also because the giver of a reference is under a duty of care to provide a reference that is true, accurate, fair and not misleading. Of course, under S.15 an employer can seek to show that if the treatment is as a consequence of disability, it is nevertheless justified as a proportionate means of achieving a legitimate aim. However, that ‘ship had sailed’ in this case, as neither employer advanced a justification argument.

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