Last months case of Thour “v- The Royal Free Hampstead NHs Trust  EWHC 1473 (QB) highlights the risks of bringing a claim for defamation based on the inaccuracy of an employment reference.
Defamation is a complicated area of law and one that is prone to be misunderstood by the layperson (and even lawyers who do not work in the field). It is generally appreciated that justification, soon to be rebadged truth, is a defence, although not always that the burden is on the defendant. some of the other defences “ absolute privilege, qualified privilege and fair comment (to become honest opinion) “ are not terms that are widely recognised by the public at large. sadly, this can occasionally result in the aggrieved litigants-in-person unwittingly pursuing a claim that is misconceived and bound to fail. This is particularly the case where the claimant has documentary evidence of a defamatory statement having been published. Without legal advice the claimant can form the view that they have an indefensible claim. They download a claim form from the internet, make a trip to the High Court, pay an issue fee (£465 or more plus £395 if they require an injunction) and wait for justice to be done. The outcome can be a crippling adverse costs order when the claim fails.
In Thour the Claimant sued an NHs trust for libel in relation to an employment reference provided to a prospective new employer (also part of the NHs). The reference had been provided by the Claimants former manager Mr Byron. In parts the reference was positive: Mr Byron said he believed the Claimant could perform the job he was seeking to a high standard. However, the reference also stated that Mr Byron would not re-engage the Claimant because he ¦had resigned while an investigation was on-going into ˜allegations of aggressive behaviour which had been made by several different members of staff. The job offer, which had been conditional on satisfactory references, was withdrawn. This was inaccurate in the sense that the investigation had been completed and the Claimant had been given a formal warning before he resigned. Having been contacted by the Claimant, Mr Byron sent a further letter correcting his initial reference.
The Defendant pleaded common law qualified privilege. Pausing here, this type of privilege covers information passed under a public or private legal, social or moral duty from one individual to another individual who has a reciprocal duty to receive the information. This privilege will defeat any claim for defamation “ even if the statement is untrue “ unless the claimant can prove that the statement was made maliciously. To establish malice the claimant has to prove that the defendant was aware of the untruthfulness of the statement, reckless as to the truth or had an ulterior/improper motive. This places a considerable and often insurmountable obstacle in the path of the claimant. There will be many cases where the claimant believes or suspects the statement was made maliciously, but simply cannot discharge the evidential burden. The uninitiated litigant can make the fatal mistake of assuming the court will presume malice or read it in. It will not.
Unsurprisingly, in Thour Mr Justice Tugendhat found that the relationship between the publisher of the statement (the referee) and the recipient (the prospective employer), and the context of the statement, clearly meant that the publication was made on an occasion of qualified privilege. This is almost always bound to be the situation where the publication is an employment reference made on request. The burden therefore fell on Thour (a litigant in person) to establish malice. Tugendhat J found that the plea of malice lacked any foundation. There was no evidence that Mr Byron had known the true position; he had not administered the formal warning himself. Furthermore, there was no suggestion Mr Byron wanted to harm the Claimant. Indeed, there was evidence to the contrary, including a letter from Mr Byron after the Claimants resignation thanking him for his kindness. The inaccuracies in the reference were likely to have been errors rather than false statements made out malice.
Given the problems in establishing malice, where does this leave the litigant who has suffered at the hands of an inaccurate reference? After all, an unsatisfactory reference can cost an applicant a job and cause significant financial loss. should there be no redress? A potential argument lies in a claim for negligence. A party who suffers as a result of an inaccurate reference may be able to bring a claim if he/she can establish that (1) he/she was owed a duty of care (2) that the defendant breached that duty by failing to achieve the required standard of care, (3) that the claimant suffered damage as a direct result of the breach and (4) that the damage was of the type recoverable in law and reasonable foreseeable. In spring v Guardian Assurance  UKHL 7 the House of Lords confirmed that such a cause of action existed where causation could be established. More recently in McKie v swindon College  EWHC 469 (QB) the High Court held that an employer could be liable to an ex-employee if it provides foreseeably damaging false information to an ex-employees new employer. In McKie no formal reference was provided.
A claim for negligence is by no means a straightforward solution and in some instances wont be an appropriate cause of action. Whilst there is no defence of qualified privilege in negligence, whether duty, breach and causation can be established will depend on the facts of the case. The claimant will need to prove he/she has suffered actual loss that it flows from the breach. This can be contrasted with libel where damage to reputation is assumed and there is no need to establish a duty of care or negligence. However, the increasing tendency of employers to provide bland references, perhaps simply confirming the dates of employment, is evidence that employers recognise this litigation risk.