The EAT held against an employer who turned down a job applicant because of a negative reference. Not knowing that the reference was because of disability-related absences was not a defence in itself.
An employer has a defence against a claim under s.15 Equality Act if it shows it did not know, and could not reasonably have been expected to know, that the job applicant or employee had a disability.
However, the Employment Appeal Tribunal in Pnaiser v NHS England & Coventry City Council www.bailii.org/uk/cases/UKEAT/2015/0137_15_0412.html has held that the employer may be liable even though it does not know that its reason for the unfavourable treatment – in this case the negative reference from a former employer – arose in consequence of the disability. However, the justification defence may be available.