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02 February 2016

Telephone reference triggers disability discrimination claim

A disabled employee who suffered the withdrawal of a job offer following a telephone conversation between her line manager and her prospective new boss has won the right to substantial compensation after a tribunal upheld her discrimination claim (Pnaiser v NHS England and Another).

Ms Pnaiser held a managerial position working as a Lifestyle Risk Management Services Implementation Manager for a local authority. She suffered from a medical condition that amounted to a disability for the purposes of the Equality Act 2010. As a consequence, she had been absent from work for several periods over the last two years. After she was made redundant by the council, she was offered a new job with NHS England, subject to satisfactory references. However, that offer did not survive the telephone conversation during which her line manager was alleged to have given her a poor reference.

She launched Employment Tribunal (ET) proceedings against both NHS England and her former employer, alleging that she had been less favourably treated due to her disability. She claimed that, during the telephone call, her line manager had commented on her absences from work, which arose from her disability, and that it was that which led to the withdrawal of the job offer. Her disability discrimination claim was nevertheless dismissed.

In upholding Ms Pnaiser's challenge to that decision, the Employment Appeal Tribunal (EAT) found that the ET had placed an impermissibly high hurdle in the path of her winning her case. Her prospective new boss had constructive knowledge of her disability and there was evidence to support her claim that her line manager had indicated to him that she was unsuitable for the role at least partially due to her record of absences. In those circumstances, the ET should have found that she had established a strong enough case to shift the burden of proving that her treatment was non-discriminatory onto NHS England and her former employer.

Rather than sending the matter back to the ET for reconsideration of liability issues, the EAT took the rare step of substituting findings of unlawful discrimination against both defendants.

The amount of compensation due to Ms Pnaiser will be assessed by the same ET.

For advice on discrimination claims, contact Paul Lawton in the employment team. Call 01753 279029 or email employmentlaw@bpcollins.co.uk.

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