This was illustrated in a recent case before the High Court.

It involved a laboratory assistant, Mr Bol Thour, who had worked for the Royal Free Hospital in Hampstead. He applied for a job at St Bart’s Hospital, which was dependent on him getting a satisfactory reference.

The Royal Free provided a reference which said Mr Thour had been “under investigation following allegations of aggressive behaviour”.

It then said: “He resigned during the investigation process and therefore no formal action was taken.” St Bart’s then withdrew the job offer saying the reference was “not of a satisfactory level”.

Mr Thour phoned his former manager at the Royal Free, Mr Neal Byron, threatening to sue the hospital. Mr Byron then emailed St Bart’s saying that he had been misinformed abou
t one aspect of the reference he had provided for Mr Thour.

Mr Byron said: “Unfortunately, using this misinformation, I wrote that he was under investigation for alleged aggressive behaviour and resigned before an outcome was reached. This was not the case.

“I have since gone over his records and in fact an investigation was completed before he left and he received a first formal warning in April 2004. No further incidents were formally investigated.”

Mr Byron added that instead of answering “no” to the question about whether he would re-employ Mr Thour, he should have left it blank. Mr Thour claimed that Mr Byron had answered ‘no’ on the questionnaire in order to “”deliberately defame my character so to jeopardise my chance of getting the job I applied for”.

The court held that there was a strong public interest in employers being able to obtain honest references. For this reason, the contents of a reference could be covered by qualified priv
ilege. This is the legal concept that provides a defence against the claims of libel as long as there is no malice involved.

Judge Tugendhat held that in this case, the inaccuracies in the reference were due to errors rather than malice and so a claim of libel could not succeed. Judge Tugendhat said: “Malice requires proof that a defendant knew that the words complained of were false, or was reckless as to whether they were true or false. In the present case there is no suggestion of any motive that Mr Byron may have had for wishing to harm Mr Thour.

“On the contrary, Mr Thour wrote to him a letter of appreciation on his resignation in 2004 and he asked Mr Byron to give him the reference now complained of.

“Mr Thour has produced no evidence that in 2004, or at the time he wrote the reference, Mr Byron knew the true position relating to the complaints he referred to in the reference.”

Each case will depend on individual circumstances and employers
should seek legal advice if they are in any doubt about what they say in a reference.

Please contact usif you would like more information about the issues raised in this article or any aspect of employment law.

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