Camurat v Thurrock Borough Council

A compromise agreement governing an employment reference does not require a public authority to suppress, limit or refuse safeguarding disclosures required by statute. A contractual term cannot lawfully modify duties concerned with protecting children. No general duty of care arose in respect of information supplied to the police for an enhanced criminal record certificate where the statutory scheme governed the disclosure and alternative remedies existed. The chronology supplied to the police was imperfect, but did not materially mislead them. Claims for misrepresentation, breach of contract, negligence and malicious falsehood therefore failed.

The claimant, a former head of languages employed by Thurrock Borough Council, agreed to terminate his employment in return for a payment and an agreed reference. The reference recorded a final written warning concerning physical contact with a pupil. After termination, the Council supplied the police with a chronology of disciplinary and safeguarding concerns. Those matters were later included in an enhanced criminal record certificate, affecting the claimant’s subsequent employment.

The claimant alleged misrepresentation, breach of the compromise agreement, negligence and malicious falsehood. The trial concerned liability only. The central issues were whether the agreement restricted safeguarding disclosures, whether the chronology was misleading or malicious, and whether the Council owed a duty of care in supplying information to the police and the Independent Safeguarding Authority.

1. Statutory safeguarding duties. The Council was subject to statutory duties concerning the safeguarding and promotion of children’s welfare and was required to make disclosures to the Independent Safeguarding Authority where the statutory conditions were met. The compromise agreement could not lawfully require the Council to disregard or modify those duties.
2. Contract. Clause 10 concerned references requested by potential employers. It required consistency with the agreed reference in that context, but did not require the Council to refuse or restrict disclosures to the police, the Independent Safeguarding Authority or other bodies concerned with safeguarding. No implied term requiring such restriction arose from the agreement or its background. Any such term would, in any event, have been contrary to public policy and beyond the Council’s powers.
3. Chronology. The chronology contained irrelevant material and some entries lacked context. Nevertheless, the police understood that the matters were allegations, had access to their own records and were not materially misled in carrying out their statutory functions.
4. Misrepresentation and negligence. The claimant failed to prove any representation that safeguarding disclosures would conform to the agreed reference, or that he entered the agreement in reliance on such a representation. Applying the reasoning in Desmond v Chief Constable Nottingham Police [2011] EWCA Civ 3, the statutory context did not justify imposing a duty of care on the supplier of information to the police. Such a duty could conflict with the statutory purpose and discourage good-faith safeguarding disclosures.
5. Malicious falsehood. The claimant failed to establish a false statement published maliciously and calculated to cause pecuniary loss. The relevant witnesses honestly believed the safeguarding concerns to be genuine. The stringent test identified in Khader v Lyons [2009] EWHC 2027 was not met.
6. All claims were dismissed.