If you’re going to turn someone down for a job or withdraw a job offer, be aware that they may legitimately question your decision. They may even have a case to challenge you in front of an employment tribunal, especially if you're unable to evidence fair reasons for the decision.
There are lessons to be learned from what recently happened to the Yorkshire Ambulance Service NHS Trust. Make sure you don’t make the same mistakes that they did.
Yorkshire Ambulance Service NHS Trust withdrew a conditional job offer after learning of the applicant’s 18-month sickness absence. An Employment Tribunal found that decision to have been discrimination arising from a disability.
Put yourself in her shoes. She had clearly been unwell, suffering from osteoarthritis, asthma and depression. Evidently these ailments prevented her from fulfilling her previous job as a nurse at New Hall Prison. But then things took a turn for the better. She applied for new jobs, and after 18 months’ sickness absence she was offered (conditionally on background checks) a more sedentary role as a medically qualified helpline advisor at the NHS Trust. She was going to make a success of it!
But it was not to be. Four days before the start of her training for the new job (two months after the conditional offer), the trust received a reference from the prison as well as an occupational health report that the trust had commissioned. From these, they learned about Mrs West’s 18-month absence. Within the body of the OH report, it was advised that Mrs West change her position every thirty minutes, which the trust interpreted to mean she needed a break every thirty minutes. In spite of her imminent arrival, they withdrew the job offer.
On learning that the job offer had been revoked, Mrs West challenged the prospective employer’s reasoning and the question of whether she had been treated lawfully came before an employment tribunal.
The employment tribunal concluded that she had not been treated lawfully. It found numerous faults with the trust’s reasoning. Or more precisely, their lack of reasoning. The tribunal seems to have inferred that the trust reached their decision too quickly, and only subsequently tried to justify it. They failed to justify their actions as far as the tribunal was concerned and they were not helped by being unable to evidence a rational and reasonable deliberation process among the senior managers who made the decision to revoke the offer.
They certainly did not persuade the tribunal that the need to change position every thirty minutes meant the need for a rest break. The tribunal was also unconvinced by the argument that difficulty walking around a large prison meant there would be similar difficulty working as a helpline advisor. Indeed, the OH report specifically refers to the fact that Mrs West was applying for a more sedentary role.
The situation was further compounded by the evidence that the (quite junior) manager who communicated the revocation decision to Mrs West said that it was because of the trust’s policy of not employing people with long term sickness absence. Actually, the policy did not say that. But the point is, the manager’s belief that it was the policy contradicted the submission that the trust had considered the specific circumstances of the case. Consequently, it was difficult to show a valid justification for the unfavourable treatment.
What can be learned from this? In brief, decisions like these must be properly considered and evidenced. It is obviously unlawful to treat an employee or a job applicant unfavourably because of something arising from a disability unless that unfavourable treatment can be justified as a proportionate means of achieving a legitimate aim. Maintaining an adequate helpline service is of course a legitimate aim. But as the trust had not properly considered the specific circumstances of the case, and as it had misinterpreted the OH report, it could not prove that the nurse’s situation would compromise the effective running of the helpline service. It was therefore unable to show that withdrawing the offer was a proportionate response.
The tribunal postponed consideration of appropriate compensation. The approach to awarding damages in discrimination claims is to put Mrs West in the position she would have been in were it not for the discrimination. Here, she would have had a job and a salary, so damages could be quite high.
Things might have turned out differently for the trust. Had it followed a fair process, and its own policies, it might have been able to evidence legitimate reasons for its decision to withdraw the offer. Conversely, this medically qualified nurse may have been brilliant at a job that was quite different from her previous job. The trust’s failure to consider the matter properly meant that neither of these options were explored. It is likely to be a costly mistake.
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An employment tribunal held that a nurse was the victim of discrimination arising from disability, after her prospective employer withdrew a job offer after seeing a record of previous [18-month] absence.