Thour v The Royal Free Hampstead NHS Trust  EWHC 1473 (QB)
The Claimant brought a libel action in respect of an employment reference. The Claimant had worked for the Defendant between 2003 and 2004. In 2009, he applied for a job at Barts and The London NHS Trust and received a conditional job offer subject to receipt of satisfactory references. The Claimant had named his former manager at the Defendant, Neal Byron, as a referee.
Having received a request from Barts, Mr Byron provided a reference. In it he explained that he had only worked with the Claimant for 6 months, and also stated that he believed the Claimant could perform the job at Barts to a high standard. However, in response to a question about whether he would re-engage the applicant, he said that he would not, because the Claimant had resigned while an investigation was ongoing into “allegations of aggressive behaviour” which had been made by “several different members of staff”. As a result, Barts withdrew the job offer.
The reference was partly inaccurate, and, after the Claimant had contacted him, Mr Byron wrote again to Barts, explaining that, in fact, the investigation into the Claimant had been completed while he was still employed by the Defendant and that he had been given a formal warning. Mr Byron said he therefore wished to withdraw the reasons he had given for why he would not re-engage the Claimant.
Judgment for the Defendant
At the start of the trial, the Defendant sought to make an application for summary judgment. However, as the case was listed for trial and the parties had attended prepared to give evidence, Tugendhat J held that it was in accordance with the overriding objective and the interests of justice to proceed with the trial. At the close of the Claimant’s evidence, and following submissions by the Defendant’s Counsel, the Judge held that there was no case of malice to go forward. He subsequently gave judgment for the Defendant.
The publication was made on an occasion of qualified privilege: the publisher and publishee were “both parts of the NHS, [and] had an obvious reciprocal interest in the giving of an employment reference for a professional person such as Mr Thour”
The fact that the Defendant was a public authority did not make a material difference in this case. In order to defeat the qualified privilege defence on grounds that the defendant public authority had acted contrary to the Human Rights Act, the Claimant would have to show that it had breached a public law duty in publishing the reference (See Clift v Slough BC  1 WLR 1774).
The relevant evidence from the Claimant was: (a) that Mr Byron was the laboratory manager (and therefore must have known the true position, namely that the investigation was completed before the Claimant resigned), and (b) that the formal warning was given following an allegation from only one person and not, as the reference said, “several different members of staff”.
However, the documents showed that the formal warning referred to two complainants and that there had been other complaints, albeit that they had not been pursued. The warning itself was signed by someone other than Mr Byron, a person who was then “Acting Lab Manager”. It followed that the only error in the reference was to the Claimant resigning while “under investigation”.
Therefore in order for the Claimant to show that qualified privilege did not apply, on the grounds that the Defendant breached a public law duty, he would have had to show that the above inaccuracy was a breach of his rights under the HRA. In light of the strong public interest in employers being able to obtain honest references and the fact that the inaccuracy did not go the heart of the Claimant’s complaint about the reference, the Defendant was entitled to the protection of qualified privilege for the employment reference.
A public authority is not required in every case to plead and prove that domestic law meets the requirements of Art. 8. The courts should, in the first instance, proceed on the assumption that domestic law strikes a fair balance and that it is compatible with the requirements of Art 8 (see Kay v Lambeth BC  UKHL 10;  2 AC 465 at [54 and .
Furthermore, the Claimant’s case on malice lacked any foundation.
The Judge found that the Claimant had produced no evidence that Mr Byron knew the true position about the various complaints and how they had been resolved either in 2004 or in 2009 when he wrote the reference. (The formal warning itself having been signed by someone other than Mr Byron.)
Although it appeared that Mr Byron may have consulted records in order to complete the reference, because many details were accurate, the inference to be drawn from the inaccuracies in the reference was that they were the result of errors, and not malice.
Furthermore, there was no suggestion that Mr Byron had any wish to harm the Claimant. On the contrary, the Claimant’s resignation letter in 2004, addressed to Mr Byron, had thanked him for his “kindness”.
Sarah Palin, instructed by RadcliffesLeBrasseur, represented the Defendant.
The judgment is available here.