Thour v The Royal Free Hampstead NHS Trust

An employment reference is ordinarily protected by qualified privilege where the provider has a moral or social duty to give it and the recipient has a corresponding legitimate interest in receiving it. The defence is defeated by malice, requiring proof that the defendant knew the words were false or was reckless as to their truth. A reasonable reader assesses the natural meaning without undue suspicion or over-elaborate analysis. A public authority’s alleged negligence or public-law error does not, without more, defeat qualified privilege or establish a breach of Article 8 rights.

The claimant sued his former employer in libel over an employment reference supplied to a prospective NHS employer. The reference stated that he had been investigated following allegations of aggressive behaviour, had resigned during the investigation, and would not be re-employed. The prospective employer withdrew a conditional offer. The defendant relied on qualified privilege, while the claimant alleged malice and breach of his rights under the Human Rights Act 1998.

The court determined the meaning of the words, whether the occasion was privileged, and whether the claimant had evidence capable of establishing malice.

1. The claim failed and judgment was entered for the defendant.

2. Applying the reasonable-reader principles in Jeynes v News Magazines Limited [2008] EWCA Civ 130, the relevant readers would understand the reference to mean that there had been more than one credible allegation of aggressive behaviour towards staff, that a formal investigation had begun, and that formal action might have been appropriate if the allegations were proved. They would not infer criminal misconduct or engage in speculation.

3. The reference was published on an occasion of qualified privilege. The defendant and the prospective NHS employer had an obvious reciprocal interest in the provision and receipt of an employment reference.

4. The defendant’s status as a public authority did not materially alter the result. A public-law duty could not defeat the privilege on the facts absent dishonesty or malice. The inaccurate statement that the claimant resigned during the investigation was an innocent and promptly corrected mistake, and did not materially affect any possible Article 8 complaint. There was a strong public interest in employers being able to request and receive honest references. The court proceeded on the assumption that domestic law struck a fair balance, following Kay v Lambeth BC [2006] UKHL 10; [2006] 2 AC 465.

5. Malice required proof, on the balance of probabilities, that the defendant knew the words were false or was reckless as to their truth. The evidence supported, at most, an error. There was no evidential basis for concluding that the referee knowingly made a false statement, and the answer that he would not re-engage the claimant was a statement of his honestly held state of mind.