Employer's reference protected by qualified privilege

A laboratory assistant could not sue an NHS hospital for libel over a job reference, the High Court has held.

Bol Thour sued the Royal Free Hospital in Hampstead after it stated, in a reference, that he had been 'under investigation following allegations of aggressive behaviour'.

The reference went on: 'He resigned during the investigation process and therefore no formal action was taken.'

Delivering judgment in Thour v Royal Free Hampstead NHS Trust [2012] EWHC 1473 (QB), Tugendhat J said Thour was employed by the hospital from September 2003 to September 2004.

In September 2009 Thour applied to St. Bartholomew's Hospital in the City for the position of medical lab assistant and, following an interview, received a conditional job offer.

One of the conditions was that Thour obtained two satisfactory references. Barts sent him a letter saying that it had received a reference which was 'not of a satisfactory level' and the job offer was withdrawn.

Tugendhat J said the following day Thour rang his former manager at the Royal Free, Neal Byron, and threatened to sue the hospital.

Later that day Byron sent an email to Barts, saying he had been 'misinformed as to one aspect of the reference' he had written for Thour.

'Unfortunately, using this misinformation, I wrote that he was under investigation for alleged aggressive behaviour and resigned before an outcome was reached. This was not the case.

'I have since gone over his records and in fact an investigation was completed before he left and he received a first formal warning in April 2004. No further incidents were formally investigated.'

Byron said that, rather than answering 'no' to the question 'would you re-engage the applicant?', he should have left the section blank.

In his witness statement, Thour accused Byron of having 'actual knowledge' that his statement in the reference was false and had acted in 'reckless disregard' of its truth.

He said Byron had answered 'no' to the question about re-engaging him to 'deliberately defame my character so to jeopardise my chance of getting the job I applied for'.

However, Tugendhat J said there was no proof of malice.

'Malice requires proof that a defendant knew that the words complained of were false, or was reckless as to whether they were true or false. In the present case there is no suggestion of any motive that Mr Byron may have had for wishing to harm Mr Thour.

'On the contrary, Mr Thour wrote to him a letter of appreciation on his resignation in 2004 and he asked Mr Byron to give him the reference now complained of.

'In order to prove malice a claimant must prove that it is more likely than not that the defendant knew what he wrote was false, or was reckless as to whether it was true or false.

'Mr Thour has produced no evidence that in 2004, or at the time he wrote the reference, Mr Byron knew the true position relating to the complaints he referred to in the reference.'

Tugendhat J dismissed the claim.