South Warwickshire NHS Foundation Trust v Lee & Ors

For a claim under section 15 of the Equality Act 2010, there may be more than one effective reason for unfavourable treatment. The relevant “something” need not be the sole or main reason, but it must have a significant, rather than trivial, influence on the treatment.

Once the burden of proof has shifted, the respondent must prove that the treatment was in no sense because of that matter. A statutory regulatory framework does not itself justify individual treatment where it leaves the employer discretion as to its implementation. The tribunal must assess objectively whether the treatment of the individual was a proportionate means of achieving the legitimate aim.

The claimant, a disabled nurse, received a conditional offer of employment from South Warwickshire NHS Foundation Trust. The offer was withdrawn after it received references from her recent private-sector employer and from her former NHS manager.

The Employment Tribunal held that the former manager’s reference was unduly negative and inaccurate because of matters arising from the claimant’s disability. It also found that the reference had more than a minor influence on South Warwickshire’s decision to withdraw the offer. The Tribunal upheld the claimant’s claim under section 15 of the Equality Act 2010.

South Warwickshire appealed, challenging causation and the Tribunal’s rejection of its justification defence. The central issues were whether the Tribunal had applied the correct causation and burden-of-proof tests, and whether the withdrawal was objectively justified.

1. Appeal dismissed. The Employment Tribunal had permissibly found that the discriminatory reference from the claimant’s former NHS employer had more than a minor influence on the decision-maker’s withdrawal of the conditional offer.

2. The Tribunal had adequately applied the guidance in Pnaiser. It identified the decision-maker, considered her reasons, and found on her accepted cross-examination evidence that both references influenced her decision. A section 15 cause need not be the only or principal cause. It must be an effective cause with a significant, rather than trivial, influence.

3. South Warwickshire wrongly conflated that inquiry with the distinct burden imposed after the burden of proof shifts. At that stage, it had to show that the withdrawal had nothing whatsoever to do with the discriminatory reference. The Tribunal was entitled to find that it had not done so.

4. The finding was not perverse. Although the reference from the claimant’s most recent employer was a significant concern, the decision-maker read both references before deciding, accepted that both influenced her, and unsuccessfully tried to obtain clarification from the former NHS manager.

5. The regulatory requirements in the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 did not make this a case of automatic application of a justified general rule. The Regulations allowed South Warwickshire choices about obtaining and assessing information in individual cases, and expressly contemplated reasonable adjustments. It therefore had to justify the withdrawal of this claimant’s offer, including its reliance on the discriminatory reference.

6. The Tribunal had made the required objective proportionality assessment. It was entitled to find less discriminatory steps were available, including occupational-health enquiries, consideration of adjustments, further efforts to clarify the reference, or discussion with the claimant. The separate effect of the other reference could properly be addressed at remedy.

• Employment Appeal Tribunal: dismissed South Warwickshire’s appeal and upheld the Employment Tribunal’s finding of liability under section 15 of the Equality Act 2010.
• Birmingham Employment Tribunal: by a reserved judgment sent to the parties on 31 March 2017, upheld the claimant’s section 15 disability-discrimination claim arising from the withdrawal of a conditional offer of employment.