Can an employer withdraw a job offer due to a negative reference?

It’s no wonder that employers now give just bland references confirming dates of employment job titles only. The giving of references can create a maelstrom of difficulties – and not giving a reference is fraught with problems too.
In a recent case before the EAT, Pnaiser v NHS England, the reference giver and the prospective employer both found themselves in hot water.   The employee’s former line manager told NHS England that Ms Pnaiser had had significant absences from work for a condition which she knew was a disability. NHS England withdrew the job offer based on that reference.
Both the withdrawal of the job offer and the giving of the reference were found to be disability discrimination. The EAT found that the line manager had known that Ms Pnaiser was disabled and telling NHS England that she would not recommend her for the new role because of her absences was the discriminatory act. The EAT also found that NHS England had constructive knowledge of Ms Pnaiser’s disability and therefore withdrawing the offer based on the reference, was because of something arising from disability.
What does this mean for employers?
The problem employers face is that references are pretty pointless if you are relying on them to find out more about a potential job applicant. In essence, all they now do is confirm that the job applicant is not lying about where they have worked and what they have done.
If you ever get a negative reference that talks about a job applicant’s absence record, proceed with real caution. If you do withdraw the job offer, be aware that may not be the end of the story….
This is why probationary periods and good management during those periods is the best thing to do. If you do have disabled candidates, you should go for occupational health guidance to find out what reasonable adjustments can be made to help them in their role.