It is well established that the provider of a job reference owes a duty of care to the subject of the reference to make it accurate. The issue in Abdel-Khalek v Ali was whether a claimant was able to prove that a negligent misstatement from a former colleague resulted in his job offer being withdrawn.
Back in 2006/7 both the claimant and defendant worked as consultant ophthalmic surgeons at a Scunthorpe hospital for about four months, although not as part of the same team. After the claimant left to work as a locum at another hospital, Goole, a number of his patients were referred to the defendant.
Four years later, the claimant applied through an agency for a locum position at Doncaster and Bassetlaw (D&B) and was offered the post based on references from Goole. A third consultant ophthalmic surgeon, working at D&B, became aware that the claimant was due to start work in his department and phoned the defendant to make enquiries. After that conversation he had concerns which he referred to a manager of surgery at D&B. After discussions with the defendant, whom he knew, the manager decided to withdraw the claimant's job offer because of concerns around clinical issues.
The claimant argued that the decision was made as a result of the defendant's negligent misstatements. The County Court dismissed the claim and the Court of Appeal has now confirmed that decision.
What was critical was what was actually said in the reference. The defendant had reported that patient complaints and complications were higher than expected, giving the impression that there were about half a dozen patients with complications and that one complaint had gone to litigation and another was expected to. There were two negligent misstatements here – there was in fact only one case that had gone to litigation; and there were three, not six, patients with complications. But despite this, the claimant failed to establish that the essential message given to the manager which led to the offer being withdrawn – that the complication rate was higher than expected over a four month period – was a misstatement.