West v Yorkshire Ambulance Services NHS Trust
In this case the tribunal upheld a discrimination arising from disability claim against an employer that withdrew a job offer when it discovered the extent of the claimant’s previous long-term ill-health absences.
Background
Mrs West, a nurse with a disability, was offered a job as an NHS helpline adviser. The offer of employment was conditional.
Her previous role in the NHS ended following an 18-month period of long-term sick leave.
The offer of employment was withdrawn after her prospective employer received her reference from her previous employer and an occupational health assessment.
Mrs West claimed in the employment tribunal that the withdrawal of the job offer constituted discrimination arising from disability under the Equality Act 2010.
Decision
The tribunal upheld the claim of discrimination arising from disability.
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.
Comment: This case highlights the difficulty for employers in wanting to withdraw job offers after receiving information post offer where a disability has caused the absence (that was also why the law changed that prevented employers asking health related questions pre-offer).
Remember: It is unlawful 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. Reasonable adjustments should be considered before making a decision to withdraw a job offer in this scenario.
An employer can successfully defend a claim if it can objectively justify the unfavourable treatment on the basis that it was a ‘proportionate means of achieving a legitimate aim’, but it may not be easy.
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