Employment Law Case Update - December 2015
Burnetts' employment law & HR team provides a summary of the latest employment law cases including giving references and reasonable adjustments during redundancy.
Employers have known for a while that they need to be careful when giving references. In fact, a large proportion of the employers that we work with now opt for factual references only.
The case of Pnaiser v NHS England and Coventry City Council is another good example of why that approach should be seriously considered.
Ms Pnaiser was a manager at Coventry City Council (the Council). She was disabled within the meaning of the Equality Act 2010. In 2011, when she was managed by Ms Tennant, she had two operations and 3 absences of more than 4 weeks each. In 2012, she was seconded to a slightly more senior role and had another absence during her secondment. In March 2013 she was made redundant, signing a settlement agreement which included an agreed reference.
In July 2013 she applied for a job with NHS England. She was offered the job in August 2013, subject to satisfactory references. The reference that was initially given by the Council was the one which had formed part of the settlement agreement. However, when Ms Tennant provided the reference, she sent it in an email offering to discuss the matter further.
When NHS England rang Ms Tennant, she explained that Ms Pnaiser had had significant amounts of time off work and indicated that she may not be suited to a role with more responsibility. She implied that Ms Pnaiser’s sickness absences had adversely affected her performance and that she might struggle to cope with pressure.
Following the discussion with Ms Tennant, NHS England withdrew Ms Pnaiser’s job offer. Ms Pnaiser brought a claim in the employment tribunal against the Council and NHS England, alleging disability discrimination.
Ms Pnaiser was initially unsuccessful but appealed to the Employment Appeal Tribunal (EAT) which recently decided in Ms Pnaiser’s favour.
The EAT felt that it was clear that Ms Pnaiser’s sickness absence had been one of the key factors in the negative reference given by Ms Tennant and that as Ms Pnaiser’s absences were almost exclusively disability related then discrimination arising from a disability had been made out.
The EAT stated that the fact that Ms Tennant had not intended to discriminate was not relevant. The questions which the tribunal should have asked were: why Ms Tennant gave the negative reference and whether there was evidence from which it could be inferred that absence (which was disability related) was part of the reason. As the disability related absence appeared to be at the heart of the negative reference, it was for the Council to show that disability had played no part in Ms Tennant’s decision to indicate that Ms Pnaiser might not be suitable for the role and/or for NHS England to show that it hadn’t been part of the rationale behind the withdrawal of the job offer.
Departing from an agreed reference is always going to be dangerous and this case highlights the extra issues that can arise when an employer offers to speak to a new employer as well as, or in preference to, the written response.
The case also shows the difficulties for those in receipt of poor references. At that point, proceeding can seem untenable but withdrawing an offer can lead to claims, including discrimination and victimisation, if the potential new employer isn’t careful.
These are challenging issues so anyone who is considering giving a less than glowing reference or anyone who is in receipt of something unpalatable should take advice before deciding how to proceed.
Reasonable adjustments during redundancy
How far does the employer have to go when a disabled employee says that they are happy with the process? Above and beyond said the Employment Tribunal in the case of Waddingham v NHS Business Services Authority.
Mr Waddingham was a long serving NHS employee. By 2011 he was involved in commissioning for his local Primary Care Trust (PCT). During the course of 2012, Mr Waddingham was told that his job may be at risk, as a result of the impending abolition of PCTs.
In December 2012, Mr Waddingham was diagnosed with throat cancer. By this time, Mr Waddingham had been notified that he was at risk of redundancy and that, although there were vacancies that he could apply for, there were no suitable vacancies that he could be slotted into.
Mr Waddingham expressed interest in a particular management post but, at about the time that applications for that role were due, he began radiotherapy treatment. Mr Waddingham sent in a fit note indicating that he would not be fit for work for the full eight weeks of his treatment and, as a result, the NHS agreed to accept a shortened application form from Mr Waddingham.
On the back of his application, Mr Waddingham was invited for an interview, and was told that the interview time could be arranged around his treatment. Mr Waddingham suggested that it was best to meet sooner rather than later, although he warned that his voice was affected by the ongoing treatment, and that he was taking quite a lot of medication to control the pain.
At the interview, Mr Waddingham was told that he could take a break at any time, or that he could stop the interview and rearrange it if necessary. He chose not to do any of those things saying, instead, that he was happy to proceed.
Unfortunately, Mr Waddingham had only scored 54% when his interview answers were marked. This meant that he did not meet the required competency level of 75%, and so was not appointed. He was subsequently dismissed on the grounds of redundancy in March 2013, and later brought claims for failure to make reasonable adjustments and discrimination arising from his disability.
The Employment Tribunal recently upheld those claims deciding that Mr Waddingham had been placed at a disadvantage by having to attend a competitive job interview and as a result of the requirement to achieve a score of at least 75%.
The Tribunal found that the employer should have given more thought to the effect that the radiotherapy treatment and the medication would have had on his performance at the interview, and on Mr Waddingham’s ability to fully prepare. Even without specialist knowledge of the particular condition, the Tribunal felt that it was obvious that Mr Waddingham's ability to deal with a competitive interview might have been hampered. The fact that Mr Waddingham had offered to proceed, and had put a positive spin on his condition, was immaterial. The Tribunal confirmed that the NHS was still under an obligation to consider, and decide for itself, whether any reasonable adjustments were needed.
The Tribunal stated that, although the NHS didn’t have to lower the pass mark, by-pass the assessment nor even delay the selection process until Mr Waddingham was better, they should have assessed Mr Waddingham on the basis of existing material available from his long service – i.e. it would have been a reasonable adjustment to look at evidence from outside the interview process (including past performance and appraisals) rather than focussing solely on his performance at the interview. The failure to do so was discriminatory.
On the positive side, the decision confirms that delays and ignoring the normal processes aren’t required but, on the negative side, the decision suggests that just asking the employee if he or she is happy/well enough to proceed won’t be enough. Although it is worth bearing in mind that Mr Waddingham was a long serving and successful manager, and that the outcome might have been different had Mr Waddingham been newer to the organisation, the case is a reminder that, during redundancy processes, once an employer has knowledge of a disability the possible impact of that disability on a recruitment/selection process needs to be considered regardless of what the employee says.
About the author
Julie is an experienced HR Consultant.
Published: Monday 14th December 2015