At first sight
Labour & European Law Review Weekly Issue 457 17 February 2016
In a claim of unlawful discrimination, a claimant has to establish a prima facie case of discrimination before the burden of proof shifts onto the employer to show that they have not discriminated against them. In Pnaiser v NHS England and Coventry City Council, the Employment Appeal Tribunal (EAT) held that the claimant did not have to prove that the only inference from a negative reference was a discriminatory one before the burden of proof could shift.
During her employment with Coventry NHS Primary Care Trust, Ms Pnaiser was off sick for several extended periods because of a disability-related condition. However, her performance appraisals were satisfactory and the Trust made no complaints about her competence to do her job. When the Trust was abolished and its work transferred to Coventry City Council, Ms Pnaiser accepted redundancy as part of a settlement agreement, which included an agreed reference.
Ms Pnaiser then applied to NHS England for a job which she was offered subject to suitable references. Her manager from the Trust (who now worked for the Council) forwarded the agreed reference rather than completing the standard reference form, along with an email offering to discuss the matter further. Professor Rashid from NHS England rang the manager who told him that Ms Pnaiser had had significant periods off work and that she would not employ her in the role.
As a result, NHS England withdrew the job offer and Ms Pnaiser brought a tribunal claim for discrimination arising from disability against the Council and NHS England on the basis that the Council had treated her unfavourably when it gave her a negative reference, as had NHS England by withdrawing the offer because of the negative reference.
Section 15 of the Equality Act 2010 provides that discrimination arising from disability occurs where a person is treated unfavourably because of something arising in consequence of disability and the treatment is not justified.
The burden of proof is on the claimant to show that there are facts from which, in the absence of an adequate explanation, the tribunal could conclude there was discrimination.
The tribunal dismissed her claim. It held that Ms Pnaiser had failed to make out a prima facie (on the face of it) case of discrimination. This meant that the burden of proof did not pass to the Council to prove it had not discriminated against her.
Ms Pnaiser appealed on the ground that the tribunal had adopted the wrong approach to the burden of proof; and NHS England cross appealed on the ground that it did not have knowledge of her disability.
The EAT agreed with Ms Pnaiser. It held that by requiring her to show that the only inference that could be drawn from the manager’s evidence was a discriminatory one before the burden of proof shifted to the employer, the tribunal had applied the wrong test.
Instead it should just have asked whether the fact that the manager gave a negative reference in a conversation where she mentioned Ms Pnaiser’s significant absence was enough to raise a prima facie case so that the burden of proof shifted.
As there were facts from which it could be inferred that the comments made by her manager were because of her disability-related absences, the burden shifted. No arguments were made that the treatment was justified. The EAT therefore substituted findings of unlawful discrimination and remitted the case to the tribunal to decide on the appropriate remedy.
The EAT dismissed the cross appeal. It considered the tribunal had correctly found that Professor Rashid had knowledge of Ms Paiser’s disability on the facts.