Employment lawyers at Fieldfisher say that a recent case at the Workplace Relations Commission (WRC) has highlighted the dangers for employers of providing broad or detailed references for employees.
In a note on the firm’s website, Greta Siskauskaite and Barry Walsh say that the case was taken by an employee who had applied to be promoted, and appointed to a panel within the respondent employer's organisation.
Appointment to the panel was subject to a satisfactory reference from the current line manager. This reference included information about previous sick leave, the worker’s anxiety, and how this affected her performance.
The employee was not appointed to the panel, and took a case to the WRC claiming disability discrimination against the employer.
Disability ‘includes anxiety’
The Fieldfisher lawyers say that it is well-established, from the Employment Equality Acts, that an employer must not discriminate against employees or job candidates based on any of the nine prescribed grounds – including disability.
“Disability is quite broadly defined and undoubtedly includes anxiety,” they write.
To prove that discrimination occurred, the employee had to establish that she was treated less favourably than another person in a comparable situation, on grounds of disability.
She said that her colleagues who did not have a disability, and who attempted to obtain the same promotion, were appointed to the panel, while she was not.
The WRC ultimately held that the reference contained several remarks that were directly linked to the employee's mental disability.
It found that the reference’s "insensitivity", in the context of a mental disability, could not be overstated.
“When providing references, especially non-positive ones, employers need to be wary about whether any commentary in the reference in regard to an employee's performance could potentially be linked to a medical condition, which falls within the definition of ‘disability’ under the employment-equality legislation,” the Fieldfisher lawyers write.
They conclude that employers should consider whether to give an opinion-based reference at all, and whether to confine any information to a factual statement of employment.