ON APPEAL FROM LIVERPOOL COUNTY COURT
HIS HONOUR JUDGE RODERICK GORE QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LORD JUSTICE LEVESON
| Mark Jackson
|- and -
Liverpool City Council
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr James Boyd (instructed by Liverpool City Council) appeared on behalf of the Appellant.
Crown Copyright ©
Lord Justice Leveson:
"There were some issues identified by his team manager in respect of recording and recordkeeping. This was addressed by a supervision and would have led on to a formal improvement plan to assist Mark to make improvements in this area. Mark left the service before this process was instigated."
"Mark was able to form good relationships with members of his team and was willing to assist colleagues. He is familiar with the youth-offending recording system and has extensive knowledge of court orders and the requirements of these orders."
"Moreover, insofar as the existence of those concerns surface in the reference process by which he seeks alternative employment, I am also satisfied that she is correct when she says that the position was accurately represented to Sefton. Accurately represented in these senses: she did not raise any specific allegations against him, nor did she allege that any investigation had been undertaken or that he was guilty of any of the allegations or concerns. In other words, the furthest that this was represented as having gone was the existence of concerns or allegations."
"The general rule is that the employer is under no duty to provide a character reference for an employee or ex-employee […] But if he does provide a reference then he should take care to provide a reference which is true, accurate and fair, otherwise he may incur liability."
"I stand back from all of this and ask myself the question: even if the reference in the circumstance that I have described was true and accurate, was it fair? I answer that in the negative -- it was not fair. It was not fair because it carried with it an unanswered, uninvestigated, unparticularised, unspecified allegation implying he was unsatisfactory for employment, that as I have already found, caused an offer of employment to be withdrawn in circumstances where the applicant for employment, the claimant, had no opportunity to refute or answer it, and that in my judgment is not fair. It is not that the process is unfair but it makes the reference unfair, it makes the reference unfair, even though it might be true and it might be accurate and, if that is right, it does not satisfy the duty […] based on the summary proposition in Harvey"
"... his former superior has further stated he is a man of little or no integrity and could not be regarded as honest ... Since 1 January 1989, Messrs Spring and Parker shared all their commission earnings on a 50:50 basis and left owing the company some £12,000 in funding which to date has not been repaid. This matter is now in the hands of solicitors. The current lapse ratio is running at 18 per cent and this is only for policies written since March of this year. Since their departure, we have found a serious case of mis-selling where the concept of "best advice" was ignored and the policies sold yielded the highest commissions."
"motivated by leaping to a conclusion – of dishonesty and lack of integrity – careless of the true facts of the case."
"...in considering the duty of care owed by the employer to the employee, although it can and should be expressed in broad terms, nevertheless the central requirement is that reasonable care and skill should be exercised by the employer in ensuring the accuracy of any facts which either (1) are communicated to the recipient of the reference from which he may form an adverse opinion of the employee, or (2) are the basis of an adverse opinion expressed by the employer himself about the employee."
"On the one hand looms the probability, often amounting to a certainty, of damage to the individual, which in some cases will be serious and may indeed be irreparable. The entire future prosperity and happiness of someone who is the subject of a damaging reference which is given carelessly but in perfectly good faith may be irretrievably blighted. Against this prospect is set the possibility that some referees will be deterred from giving frank references or indeed any references."
"At the time of his departure Mr Bartholomew was suspended from work due to a charge of gross misconduct, and disciplinary action had commenced. This disciplinary action lapsed automatically on his departure from the authority."
"understandably hardly any discussion of any question of nuances or, as it might be put in terms of defamation law, innuendo which might stop a reference, while factually correct so far as it went, from being unfair."
"…opinion based on facts, some of which are capable of more or less precise and objective measurement and others of which depend on much more subjective perceptions."
"the libel cases seem to me to serve as a salutary reminder that the fairness or unfairness, the accuracy or inaccuracy, and, indeed, truth or falsity of a statement have to be taken in the round and in context and cannot be in every case dissected into a number of discrete parts."
Lord Justice Richards:
Lord Justice Maurice Kay:
Order: Appeal allowed