Prospective employees and sickness absence

Requesting a reference

When you make a job offer to a prospective employee it should be conditional on the receipt of references which are satisfactory in your opinion. The law doesn’t say how many references you should or can actually obtain in relation to a prospective employee but it’s good practice to seek at least two (although some employers opt for three). Where an individual has been employed previously, their former employer should always be approached for a reference.

A bit of a worry

But let’s suppose that, in their response to your reference request, the previous employer says your prospective employee had a significant period of long-term sickness absence during the course of their employment. This revelation would naturally concern most employers - but could you use it as grounds to withdraw a job offer that you’ve already made? The answer to this question was confirmed by the tribunal in West v Yorkshire Ambulance Services NHS Trust 2016 .

Facts of the case

West (W), who is a nurse, had been offered a job with Yorkshire Ambulance Services NHS Trust (Y) as a helpline advisor. Having made its job offer to W, Y followed best practice procedure and approached her former employer - another NHS Trust - for a reference. It replied stating that W’s employment had “ended following an 18-month period of sickness absence” . Concerned about this information, Y contacted W advising her that its earlier job offer had now been “withdrawn” but said no more.

Disability discrimination?

W - who presumably put two and two together - claimed that the withdrawal of the job offer was disability discrimination contrary to the Equality Act 2010 . The tribunal was struck by the speed at which the job offer was withdrawn following receipt of the reference. As a result, it concluded the previous employer’s comment about sickness absence had caused Y to doubt W’s ability to do the job and was the only reason why the job offer was withdrawn. This decision amounted to disability discrimination.

The correct approach

Y’s unexplained knee-jerk reaction was its downfall. Instead, it should have:

• discussed the issue with W to establish if she had, or may have, a disability (the tribunal found that she did)
• taken specialist occupational health or other medical advice on her condition
• considered whether any adjustments were necessary
• implemented all reasonable adjustments.

Tip 1. If this is done but no reasonable adjustments are possible, or adjustments will be prohibitively expensive for the employer to implement, a job offer may be withdrawn.

Tip 2. Do not, under any circumstances, withdraw a job offer due to previous sickness absence - that’s asking for trouble. However, if other elements of a reference are unsatisfactory in your opinion and they aren’t related to sickness or disability, you could use that as grounds to withdraw your offer.