Ms Joanne Tierney v Mid and South Essex NHS Foundation Trust — 2020

Ms Joanne Tierney applied in March 2020 for a six-month HR contract with Mid and South Essex NHS Foundation Trust. She received a verbal offer on 27 March 2020 and a conditional offer on 11 May 2020, subject to medical clearance and references. The tribunal recorded that the claimant had not worked since 2009 because she was caring for her son, that the respondent asked for references from the last three calendar years, and that alternative references were discussed. A medical examination on 20 May 2020 was successful, but the offer was withdrawn by email on 22 May 2020 because of the reference position.

The unfair dismissal claim and the claim for notice pay and other pay were withdrawn by the claimant. The reasons record that she had not been an employee, and that even if she had been, she had not the two years' service needed for an unfair dismissal claim. No monetary award was made on any withdrawn claim.

The age, sex and disability discrimination claims were dismissed as having no realistic prospect of success. The tribunal accepted that the claimant and her husband felt a real grievance about how the references were handled, but found that she was not alleging the withdrawal was because of age, sex or disability. The tribunal considered the claim as one of indirect discrimination based on a PCP requiring employment references for the previous three calendar years, but held that the claimant's case failed because the respondent had not applied that requirement in a way that disadvantaged her by reason of a protected characteristic: she said she could have complied if the respondent had worked differently with her references, rather than that the policy itself created a disadvantage tied to age, sex or disability. The tribunal therefore struck out the discrimination claims.