Employers who receive a reference detailing a potential recruit's significant absence levels in their last job risk a disability discrimination claim if they withdraw the offer for that reason without making further enquiries about the individual's health and possible reasonable adjustments (from occupational health advisors, the referee, and/or the recruit). Although the employer in South Warwickshire NHS Foundation Trust v Lee had a legitimate aim of recruiting an individual capable of carrying out the role, withdrawal of the job offer on receipt of such a reference without making further enquiries had not been a proportionate means of achieving that aim. It is also worth noting that the employer had received a second negative reference focussing on the individual's performance and capabilities unrelated to health. The employer would not have been liable had it relied only on that reference and been able to prove this (eg, through a contemporaneous record of its reasons for withdrawing the offer).
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Steve Bell
Managing Partner - Employment, Industrial Relations and Safety (Australia, Asia), Melbourne
Emma Rohsler
Regional Head of Practice (EMEA) - Employment Pensions and Incentives, Paris
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