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This case concerns a claim for defamation (and malice) made by a former employee of the Royal Free Hampstead NHS Trust. A reference was provided to a provisional employer which contained inaccurate information, the content of which caused the former employee not to be offered employment. The High Court found that although a case for defamation had been made out by the former employee, the NHS Trust was protected from liability by the defence of qualified privilege. Employers have a moral, legal or social duty to provide honest and candid references to potential employers (especially public authorities) and the potential employer has a legitimate interest in receiving such references.

The facts in Thour v The Royal Free Hampstead NHS Trust

Mr Thour (“the Claimant”) commenced employment with the Royal Free Hampstead NHS Trust (“the Defendant”) in September 2003 and worked for the Defendant until September 2004 as a laboratory assistant. During this time period Mr Byron was the Claimant’s line manager for a period of 6 months. After leaving the Defendant the Claimant completed a course of studies. The Claimant approached Mr Byron in 2007 and asked him if he could use his name as a referee.  Mr Byron assented.

In September 2009 the Claimant applied for the post of Medical Laboratory Assistant at Barts and the London NHS Trust (“Barts”). The Claimant, after an interview, received a condition offer from Barts on 30 October 2009. One of the conditions of that offer was that two suitable references be received. The Claimant therefore asked Mr Byron to supply Barts with a reference. Mr Byron did so using the standard “Reference Request”. However, Mr Byron indicated in the Reference Request that he would not re-employ the Claimant because of allegations of aggressive behaviour made against the Claimant by several members of staff. Barts subsequently wrote to the Claimant indicating that the references received were insufficient. The Claimant was angered by this and complained to Mr Byron on 13 November 2009. As a result of this complaint Mr Byron telephoned the Recruitment Manager at Barts to rectify the mistake that he had made. However, the position was not offered to the Claimant.

The Claimant subsequently issued a claim in the civil courts for defamation and, further or in the alternative, malice.

The law relating to employment references and defamation

Employers are under no legal duty to provide an employee or an ex-employee with a reference (subject to any contractual provisions). However, if they do then employers have to be careful in giving references – they can be pursued under contract law or tort law if the reference is unsatisfactory. The various tortious actions that an employer can be pursued for are negligence (negligent misstatement) and defamation. Further, the employer can be pursued by the employee for breach of contract if there are express contractual provisions relating to the provision of employment references. In this article, however, we will deal specifically with the tort of defamation.

An employer can be pursued for defamation by an existing or former employee if it publishes a defamatory statement that refers to that person to a third party. A defamatory statement can either be in semi-permanent form (slander) or permanent form (libel). Most disputes in which the Claimant is successful regarding defamation in an employment reference refer to libellous statements – for example, the provision of a written reference. Slander is difficult to prove as it usually relates to telephone conversations between the Defendant and third parties.

In order to be defamatory, the statement must lower the employee in the eyes of right-thinking people – in this circumstance, their potential employer. This is an objective test and is based upon how the reasonable potential employer would perceive the statement. The statement must also refer to the employee. In most cases involving employment references this is fairly clear – the reference has been requested by and is provided for the employee. Finally, the employer providing the reference must publish it to a third party. Again, this is normally straightforward in the case of written references.

There are a number of defences available to employers who have provided a potentially defamatory reference. One of these defences, utilised here, is the defence of qualified privilege. This applies where the Defendant (the previous/current employer giving the reference) has a legal, moral or social duty to communicate the statement (the reference) to the potential employer and the potential employer has a legitimate interest in receiving this communication. This protection will apply not only to provision of the reference to the potential employer but also the sending of the reference to his previous employers or to an employment agency. A defence of qualified privilege can be defeated by the proving of malice by the employee on the part of the employer – essentially that the employer had a malicious intent in publishing the reference in the form that it did.

The High Court’s decision in Thour v The Royal Free Hampstead NHS Trust

The High Court found that a case for defamation had been made out on behalf of the Claimant. However, it considered that the defence of qualified privilege applied in the circumstances. It was found that there was a “strong public interest in employers such as Barts being able to ask for and receive honest employment references”.  The Defendant had a legal, moral or social duty to provide the reference and Barts had a legitimate interest in receiving it, regardless of its content. It is not clear from the judgment whether this strong interest applies only to public authorities but also to normal businesses. Further, Judge Tugendhat found that Mr Byron did not have a malicious intent in providing the reference – it was simply a mistake. Thus the claim for defamation failed.

Our thoughts on Thour v The Royal Free Hampstead NHS Trust

It is not clear from this judgment as to why the Claimant did not issue the claim for negligence as well as defamation. A negligent misstatement had potentially been made by Mr Byron in providing an inaccurate reference and the defence of qualified privilege does not apply in cases of negligence, only in defamation. However, what this case demonstrates is that although employers should be careful as to whether and how they provide references, they are protected to a great extent from liability for defamation through the provision of inaccurate employment references.

Our employment law team is based in Richmond, London.

About Chris Hadrill

Chris is a specialist employment lawyer at Redmans. He specialises in contentious and non-contentious employment matters, including breach of contract claims, compromise agreements and Employment Tribunal cases. He writes on employment law matters on a variety of websites, including Direct 2 Lawyers, Lawontheweb.co.uk, LegalVoice, the Justice Gap and his own blog.

Contact Chris by emailing him at chadrill@redmans.co.uk

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