Civil cases for alleged negligent misstatement in employment references are rare, increasingly so in the modern world of the neutral reference.
As such, the decision in Smith and Jackson v Various Defendants [2025] EWHC 74 (KB) makes for interesting reading, not least as the reference in question was also the basis for claims in defamation (libel) and misuse of private information (MPI). The claims failed on all counts.
The claimants were former employees of Stanborough School. They moved on and took up roles at an academy. Some years later, they were offered (via a recruitment consultant) teaching roles at another establishment. The offers were subject to satisfactory references from their last two schools. The academy provided satisfactory references. By contrast, a preliminary reference provided by the Head of Stanborough confirmed the claimants’ dates of employment, but added, “however, I would like to inform you that there were some safeguarding issues during their time at the school”. On the back of this, the job offers were withdrawn. The claimants sought compensation for damage to reputation and loss of earnings.
The claims were factually complex, not least given the emotive nature of the relationships between staff at Stanborough during the time in question. As such, the evidence was considered in detail by the judge, but for the purposes of this article it suffices to confirm his finding that certain incidents involving the claimants in their role as teachers had presented a safeguarding concern (for example, a pupil being left to return home on his own). Based on these findings of fact, the judge considered the law applicable to the three causes of action:
- Libel: the words in the reference satisfied the requirement for serious harm under s.1 Defamation Act 2013. However, the defence of qualified privileged (QP) applied with a duty and interest between the author of the reference and the recipient. The recruitment consultant asked the Head for no more than the dates of employment and whether there were any safeguarding concerns. The reference went no further than answering those questions. There was no malice to undermine the QP defence. The Head held a genuine belief that there were safeguarding issues. Further, the judge’s findings of fact meant the defendant could also rely on a defence of truth under s.2(1) of the Act.
- Negligent misstatement: it was accepted that a duty of care was owed (per Spring v Guardian Assurance [1995] 2 AC 396).However, the claim in negligence failed on the issue of breach. The reference was accurate and true – “if the statement complained of is true…there can be no liability in negligence any more than for defamation” (para 151).
- MPI – this claim was misconceived. In any event, there was no misuse when making a lawful publication “in a classic duty/interest privileged situation” (para 156)
This was a highly charged case that seemingly required a six-day hearing. However, much of the witness evidence covered issues that the judge described as “tangential”. Once the pertinent factual issues were resolved, the causes of action did not survive as a matter of law. The judgment can be read here - https://www.bailii.org/ew/cases/EWHC/KB/2025/74.html
For further information on the decision in this case, please contact our employment solicitors.
