The Claimant, who was disabled within the meaning of the EqA 2010, was employed by Staffordshire and Stoke. She then worked for  private firm before applying for a job with the Respondent. She had the job offer wothdrawn after the Respondent received an adverse reference from the Claimant's line manager at Staffordshire and Stoke which the ET found to have been discriminatory for the purposes of section 15 EqA - the overall tenor of the reference was an unnecessary (and repeated) emphasis on sickness. The ET concluded that the reference had been more than a minor influence; the burden of proof had passed to the Respondent to show that the withdrawal of the offer had nothing whatsoever to do with the discriminatory reference but it had failed to discharge that burden. Although the ET accepted that it was a legitimate aim for the Respondent to recruit an employee who was capable in all respects of undertaking the requirements of the role in question, it concluded that there were less discriminatory means of achieving that aim so far as the content of the reference was concerned. Her claim thus succeeded and the Respondent appealed.

The EAT dismissed the appeal.  The ET had correctly asked itself the questions identified in Pnaiser v NHS England [2016] IRLR 170 and had concluded that, on the evidence, the burden of proof had shifted to the Respondent. On the justification issue, there was a discretion left to the Respondent how to implement the Regulations in individual cases and the ET had therefore properly had regard to the question of justification in the Claimant's case.