Burden of proof and verbal references

In Pnaiser v NHS England and Coventry City Council (UKEAT/0137/15), the EAT found that the applicant did not have to show that the only reason for a negative reference was due to her disability related absence. There was sufficient evidence to show that her absence influenced the negative reference and thus the burden of proof moved to the respondents.

Ms Pnaiser had an agreed reference but the prospective employer followed up with a phone call to the applicant’s employer and after a discussion about what the role involved, the referee intimated misgivings about the applicant’s ability to fulfil the role. The evidence at tribunal suggested that part of the reason for the negative verbal reference was as a result of Ms Pnaiser’s absence record. It was shown that the absence was as a result of her disability. The case can be found by clicking here.