Posted by Caroline Doran Millett, Partner
Liability for References
In Abdel–Khalek v Ali the High Court has found that a reference given on behalf of a prospective employee contained a negligent misstatement, and this was upheld when the matter went to the Court of Appeal. The matter concerned a reference which was provided on behalf of a consultant ophthalmic surgeon by a colleague, to another hospital trust, which resulted in the job offer being withdrawn after the consultant had initially been offered the post based on other references.
The prospective employer was told, during a telephone conversation to discuss the reference, that there had been unexpected complications arising out of operations undertaken by the claimant and that the rate of complications, around half a dozen, was higher than expected and, furthermore, two cases were turning litigious. The High Court Judge found that this was a negligent misstatement because in fact there were only three complications and only one case was proceeding to litigation. However he concluded that the claimant had not shown that either of the negligent misstatements had been the cause of the offer being withdrawn. The appeal to the Court of Appeal was on the issue of causation and the appeal was dismissed because the Court of Appeal considered that the claimant could not demonstrate that, but for the negligent misstatement, the job offer would not have been withdrawn. This was because the critical factor in withdrawing the job offer was the impression that the complication rate was higher than expected and this lay at the heart of the decision rather than the precise numbers.
Yet another salutary lesson on the dangers of giving oral references.
It pays to employ the right employment solicitor