AB v A Chief Constable (Rev 1)

A public authority providing a reference may owe duties both in private law and under statutory public-law standards. A reference must be accurate, fair and not misleading overall. However, a disclaimer and an express policy of providing only basic information may prevent an assumption of responsibility giving rise to a further private-law duty.

Police standards of honesty and integrity can impose a public-law duty to provide a fuller reference where the recipient is a regulatory body. That duty remains subject to the Data Protection Act 1998 and legitimate expectations. Disclosure must be fair, requiring a balance between the data subject’s interests and the public interest. A prior undertaking and established practice may make later disclosure unlawful or unfair, particularly where the individual has relied on them to his detriment.

The claimant was a senior police officer facing unresolved gross-misconduct allegations. He applied for a role with a regulatory body and nominated a senior police staff officer as referee. In accordance with the Force’s established practice, the referee supplied a standard reference containing only basic employment information.

After the claimant resigned to take up the new role, the Chief Constable decided to send a second reference disclosing his sickness absence, resignation before a misconduct hearing and the outstanding allegations. The claimant brought private and public law claims, relying on the Data Protection Act 1998 and legitimate expectations. The central issues were whether the Chief Constable was under a duty to send the second reference and, if so, whether he was legally permitted to do so.

1. Private-law duty. The first reference, read as a whole, was not misleading because it stated that the Force’s policy was to provide only basic information and contained a disclaimer of responsibility. The disclaimer prevented an assumption of responsibility under Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465. There was therefore no private-law duty requiring the second reference.
2. Public-law duty. The professional standards in the Police (Conduct) Regulations 2008, made under the Police Act 1996, imposed public-law duties of honesty and integrity. Those standards could be informed by the common-law requirements that references be full, frank, fair and not misleading, together with statutory guidance and the policing code of ethics. In ordinary circumstances the Chief Constable would have been required to provide information about the outstanding disciplinary matters.
3. Data protection. The claimant’s illness record was sensitive personal data. No condition in Schedule 3 had been established, so its disclosure would have been unlawful. Disclosure of the disciplinary matters would otherwise have been lawful and would have satisfied condition 3 of Schedule 2, but fairness required a balance between the public interest in full references and the claimant’s interests.
4. Fairness and legitimate expectation. The claimant had been promised the standard reference under an established Force policy and practice. He relied on that undertaking by resigning and seeking termination of the disciplinary proceedings, without knowing that a second reference was contemplated. Sending it would probably have deprived him both of his new employment and of the opportunity to answer the allegations. It would also have been procedurally unfair because he had not been given a meaningful opportunity to make representations before the decision.
5. The proposed disclosure would therefore breach the Data Protection Act 1998 and undermine the claimant’s legitimate expectation. The second reference could not be sent.

First-instance decision. No appellate history was stated in the judgment.