Employer who withdrew job offer due to sickness absence guilty of discrimination

News Article

An employment tribunal has ruled that a nurse was the victim of discrimination arising from disability, after her prospective employer withdrew a job offer after seeing a record of previous absence.

In the case which was brought against Yorkshire Ambulance Services NHS Trust, the tribunal upheld a discrimination arising from disability claim, after hearing that it had withdrawn an offer of employment upon discovering the extent of the would-be employee’s previous long-term ill-health absences.

The claimant, a nurse who had a disability, was conditionally offered a job as an NHS helpline adviser. Her previous role in the NHS ended following an 18-month period of long-term sick leave.

However, the initial offer of employment was withdrawn when her prospective employer received both a reference and an occupational health assessment from her previous employer. The nurse claimed in the employment tribunal that the withdrawal of the job offer constituted discrimination arising from disability under the Equality Act 2010.

The employment tribunal was struck by the speed at which the decision to withdraw the job offer was taken once the employer had received the reference and occupational health report. The tribunal concluded that the main reason for the withdrawal of the job offer was that the nurse’s previous absences had put doubt in managers’ minds as to her ability to do the job.

Charlotte Woolven Brown, an employment law expert with Palmers, said: “It is against the law for an employer to treat an employee unfavourably because of something “arising in consequence of” his or her disability, where the employer knows, or could reasonably be expected to know, that the employee has a disability.

“An employer can successfully defend a claim if it can justify the unfavourable treatment on the basis that it was a proportionate means of achieving a legitimate aim.”