Pnaiser v NHS England & Anor (Disability Discrimination: Burden of proof)

Factual and Procedural Background

The Appellant was employed by Company B's predecessor organisation as a Lifestyle Risk Management Services Implementation Manager and suffered from a medical condition amounting to a disability under the Equality Act 2010, resulting in significant absence over two years. After redundancy by Company B, the Appellant was offered a new position with Company A, subject to satisfactory references. Following a telephone call between a representative of Company A and a representative of Company B regarding the Appellant, the job offer was withdrawn.

The Appellant brought claims of unlawful disability discrimination under section 15 of the Equality Act 2010 against both Company A and Company B. The Employment Tribunal dismissed all claims, finding that the Appellant failed to establish a prima facie case sufficient to shift the burden of proof to the Respondents. The Appellant appealed this decision, and Company A cross-appealed the finding that its representative had constructive knowledge of the Appellant's disability.

Legal Issues Presented

1. Whether the Employment Tribunal erred in its application of the burden of proof under section 136 of the Equality Act 2010, specifically whether the Appellant established a prima facie case of disability discrimination arising under section 15 against Company B based on a negative reference linked to disability-related absence.
2. Whether the Tribunal's conclusion that the negative reference was not given because of the Appellant's disability-related absence was supported by evidence.
3. Whether the Tribunal erred in dismissing the claim against Company A for withdrawing the job offer based on the negative reference, without properly considering if the negative reference was linked to disability-related absence.
4. Whether Company A's representative had constructive knowledge of the Appellant's disability, as required under section 15(2) of the Equality Act 2010.

Arguments of the Parties

Appellant's Arguments

• The Tribunal wrongly applied an excessively high burden of proof, requiring the Appellant to show that the only inference was discriminatory motive, rather than whether a prima facie case existed to shift the burden of proof.
• The facts that the negative reference was given, that it was denied by the reference provider, and that it referred to significant absence known to be disability-related, were sufficient to establish a prima facie case against Company B.
• There was no evidence supporting the Tribunal’s conclusion that absence was not the reason for the negative reference; rather, the evidence supported that absence (and thus disability) influenced the negative reference.
• If the Tribunal erred in relation to Company B, it must follow that Company A unlawfully discriminated by withdrawing the job offer based on the negative reference, which was linked to disability-related absence.
• The Tribunal misapplied the law by failing to examine the causal link between the withdrawal of the job offer and the disability-related absence.
• Company A had constructive knowledge of the Appellant’s disability, given the references and medical information available.

Respondents' Arguments

• The Tribunal correctly applied the burden of proof and found no prima facie case of discrimination.
• The Tribunal’s findings were supported by evidence, including the reference provider’s genuine competence concerns unrelated to disability.
• The negative reference was given due to concerns about competence, not absence or disability.
• The withdrawal of the job offer by Company A was based on the negative suitability reference, not on absence or disability.
• The Tribunal’s finding that Company A’s representative had constructive knowledge of disability was erroneous as the representative closed his eyes to the possibility rather than the fact of disability.
• Grounds of appeal raised are effectively perversity appeals and do not meet the threshold for overturning factual findings.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analysed the Employment Tribunal’s approach to the burden of proof under section 136 of the Equality Act 2010, concluding that the Tribunal imposed an impermissibly high hurdle on the Appellant by requiring that the only inference from the evidence be discriminatory motive before shifting the burden of proof. The correct test is whether the facts raise a prima facie case that the negative reference was given at least partly because of the Appellant’s disability-related absence, thus shifting the burden to the Respondents to prove otherwise.

The Court found that the Tribunal’s conclusion that absence was not part of the reason for the negative reference was unsupported and contrary to the evidence, including the Tribunal’s own findings about the reference provider’s admitted concerns related to absence rather than competence. The Tribunal’s reasoning was internally inconsistent, particularly in concluding that the reference provider denied making a negative comment because she knew she had gone too far, while simultaneously accepting she had genuine competence concerns.

Regarding Company A, the Court held that since the withdrawal of the job offer was based on the negative reference, and given that the negative reference was at least partly linked to disability-related absence, the Tribunal erred in dismissing the claim against Company A without properly applying the section 15 two-stage test to the unfavourable treatment. It was permissible and necessary to examine the reasons behind the negative reference to determine if it arose in consequence of disability.

The Court further assessed the cross-appeal by Company A challenging the finding of constructive knowledge of disability. It upheld the Tribunal’s finding that Company A’s representative had constructive knowledge of the Appellant’s disability based on the medical and reference evidence and the representative’s failure to inquire further.

Finally, the Court exercised its rare power to substitute findings rather than remit the case, concluding that the Tribunal had made all necessary factual findings and the errors were in the application of law to those facts. The Court substituted findings of unlawful disability discrimination under section 15 against both Respondents.

Holding and Implications

The appeal is ALLOWED and findings of unlawful disability discrimination under section 15 of the Equality Act 2010 are SUBSTITUTED against both Company A and Company B. The cross-appeal by Company A challenging constructive knowledge is DISMISSED.

The case is remitted to the Employment Tribunal for determination of remedy. No new legal precedent is established beyond the application of existing principles to the facts of this case. The direct effect is to reverse the dismissal of the Appellant’s claims and to hold both Respondents liable for disability discrimination arising from disability-related absence and its consequences.