In the case of Bol Thour v Royal Free Hampstead NHS Trust, a defamation claim made by a former NHS employee concerning an employer reference failed because the publication was covered by the defence of “qualified privilege”. The reference stated that the employee was under investigation following allegations of aggressive behaviour towards several staff members, but mistakenly stated that the claimant resigned during the investigation process and that no formal action was taken. Reliance was placed on the reference to withdraw the offer of employment.
In fact, the claimant had not resigned but was given a first written warning. The claimant claimed defamation in that his previous manager knew that the reference was inaccurate, or had acted recklessly or negligently in failing to ascertain the true position. The respondent trust submitted that the publication was covered by qualified privilege, which is a defence to actions of defamation and arises where the person who makes a communication has an interest or a legal, social or moral duty to make it to the recipient.
The court held that the hypothetical reader would understand the words “the claimant resigned during the investigation process” to mean that there had been more than one credible allegation that the claimant had exhibited aggressive behaviour towards members of staff, that a formal investigation process had been commenced and that formal action of some kind would or might be appropriate.
The court recognised that there was a strong public interest in employers, such as NHS bodies, being able to ask for and receive honest employment references. The defence to defamation of qualified privilege was made out such that the respondent trust was under a moral and/or social duty to communicate to the prospective employer the words complained of. The recipient had a corresponding and legitimate interest in receiving such information. There was no question of malice or of bad faith. The claimant’s claim therefore failed.