Discrimination legislation applies before and after employment too!

A recent Employment Tribunal case highlights the importance of not falling foul of discrimination legislation not only during the term of employment, but during the recruitment process or when providing references for ex-employees, or employees due to leave.

Protection against discrimination based upon a “protected characteristic” (such as race, sex, disability, age, religious belief etc.) is afforded by the Equality Act 2010. What is often not appreciated is that these protections apply at every stage of the employment relationship, including prior to the start of formal employment and post-employment.

In the case of West V Yorkshire Ambuance Services NHS Trust, Mrs West (a nurse) received a conditional offer of employment to work as an NHS helpline advisor; the offer was conditional upon satisfactory references. Her previous employer’s reference, along with an occupational health assessment, disclosed that Mrs West had left her previous NHS job after an 18 month period of sick leave. In response her prospective employer immediately withdrew the job offer.

Mrs West was subsequently successful in the Employment Tribunal when it was ruled that her prospective employer had discriminated against her on grounds of disability under the Equality Act.

The case is an important reminder to all employers (and prospective employers) that they must consider and act in accordance with the Equality Act 2010 at every stage, or risk finding themselves defending a tribunal claim. Discrimination cases are fact sensitive; a factor in Mrs West’s case highlighted by the Tribunal was the apparent speed at which the decision was made to withdraw the job offer. No other enquiries or investigations beyond receipt of the reference appeared to have been undertaken.

In a similar case heard before the Employment Appeals Tribunal, an ex-employer was judged to be guilty of disability discrimination having provided a negative reference following the employee’s lengthy period of sick leave.

I have selected these case examples to highlight the way in which Employment Law governs your relationship with employees beyond the obvious term of employment. Of course however, employers are not required to employ every applicant with a ‘protected characteristic’. An employer may successfully defend a discrimination claim by demonstrating that the “unfavourable treatment” towards the employee caused by the discriminatory act was a “proportionate means of achieving a legitimate aim”. In practical terms this means a prospective employer being able to reasonably argue and demonstrate that the particular ‘protected characteristic’ of the candidate would likely render them unable to perform the job and or that the needs of the employer would be adversely affected if they were employed.

Holmes & Hills Solicitors provide Employment Law advice to employers across Essex and Suffolk, advising them on a wide range of Employment Law issues. for advice, call David Dixey on 01376 320456.