05 January 2016

Employee references - new guidance and our tips

In the case of Pnaiser v NHS England and Coventry City Council, the Employment Appeal Tribunal reminds employers – new and old – of the risks associated with negative references.

Ms Pnaiser was employed by Coventry City Council for three years until she took redundancy under a settlement agreement. During her employment she was recognised as a technically able employee but she took significant periods of disability-related sickness absence.

After she left Coventry City Council, Ms Pnaiser applied for and was offer a job with NHS England, subject to background screening and references. A standard reference request, which asked a number of questions including about sickness absence, was sent to Ms Pnaiser's referees. Ms Pnaiser's manager at Coventry City Council, Ms Tennant, provided NHS England with a reference that had been agreed as part of the settlement agreement and said nothing about sickness absence. Another referee provided information which indicated that Ms Pnaiser might have a disability.

The individual who had interviewed Ms Pnaiser on behalf of NHS England, Professor Rashid, noted that the reference provided by Ms Tennant was not in the required form and was brief. He therefore telephoned Ms Tennant and subsequently followed up his calls with e-mails. What was said between them was later the matter of dispute. However, the tribunal found that it included: mention by Ms Tennant of Ms Pnaiser's sickness absence; and, when pushed by Professor Rashid to comment on Ms Pnaiser's suitability for the NHS role, Ms Tennant said she would not employ Ms Pnaiser in that role and did not think she would be able to undertake it – although Ms Tennant did not explain her reasons for holding this view.

Professor Rashid, who had already started to have doubts about Ms Pnaiser, withdrew the offer of employment because of Ms Tennant's comments. He did not ask Ms Tennant to elaborate further on her view.

Ms Pnaiser brought a claim, for discrimination arising from disability, against both NHS England and Coventry City Council. The tribunal dismissed her claim, but the Employment Appeal Tribunal upheld her appeal. It said that the relevant question to ask was whether it could be inferred from the evidence that Ms Pnaiser's disability-related absence was part of the reason for Ms Tennant giving the negative reference. It found that it could. Consequently it fell to Coventry City Council to prove that Ms Pnaiser's absence record had not played a part in what Ms Tennant had said to Professor Rashid and the Council did not provide evidence to show that this was the case. Hence Ms Pnaiser had suffered discrimination arising from disability, which had not been justified.

Both NHS England and Coventry City Council were found to have discriminated unlawfully: Coventry City Council because of the unfavourable reference, and NHS England because of withdrawing the job offer because of that reference.

The lessons to learn from this case are:

  • oral references (formal or informal) are just as (if not more) likely to lead to legal claims than written ones;
  • employers should, wherever possible, avoid giving negative subjective assessments of former employees, particularly orally;
  • managers should be trained not to be caught off guard by telephone calls seeking amplification of written references;
  • if a positive reference would be unfair, inaccurate or misleading, an employer should, wherever possible, give no reference at all;
  • however, giving no reference in respect of a particular individual can itself lead to claims if this is contrary to a general policy of giving references;
  • a general policy of not giving references, or only basic factual references, is generally advisable (subject to regulatory requirements).

For further information on references see tips on references, or for advice on specific matters please contact a member of the Withers Employment Group.


Category: Article