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Job offer withdrawal for unsatisfactory reference was discrimination arising from disability

Makbool Javaid
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In South Warwickshire NHS Foundation Trust v (1) Lee, (2) Staffordshire & Stoke on Trent Partnership NHS Trust, (3) Mason, Lee (L) is a nurse and disabled because of knee arthritis. Lee experienced issues working at S&S Trust, due to absences and difficulties in carrying out her role because of problems with her knees. L was offered a job by SW Trust, subject to satisfactory references. SW Trust received two references which raised concerns and withdrew the job offer. An ET found that the reference from Mason, L’s manager at S&S Trust, placed an unnecessary emphasis on L’s sickness absences and her inability to perform her role and were part of the reason in M’s mind for giving such an unduly negative and inaccurate reference. This amounted to unfavourable treatment under S.15 of the Equality Act 2010, ‘Discrimination arising from disability’ as was SW Trust’s withdrawal of the job offer. SW Trust had a legitimate aim of recruiting a person who was totally capable of fulfilling the role and complying with the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. However, its actions were not justified. Under the Regulations, the obligation is to employ people who ‘after reasonable adjustments’ are capable of performing the role, but no further enquiries were made to determine whether reasonable adjustments were possible. The EAT agreed with the ET’s reasoning and its decision.


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