In the recent case of AB v A Chief Constable  EWHC 1965, the High Court considered whether the chief constable of a police force had a duty under private or public law to provide further information to the recipient of a standard reference that did not refer to outstanding disciplinary action against the employee or his long period of sickness absence.
The claimant (AB) was a senior police officer and had been employed for 24 years. The defendant was the police force (the Force), the claimant's former employer.
It was common knowledge that AB was gay. The Force became concerned that he was using his position to attempt to influence the appointment of a friend (who was also gay) as a special constable in the Force. Following an investigation, AB was invited to a disciplinary hearing. He believed he was a victim of institutional discrimination because of his sexual orientation. During the disciplinary investigation, the claimant's point of contact in the Force was Assistant Chief Officer GH (GH).
In 2009, the Force had introduced a template standard reference, which confirmed an employee's job title and dates of employment and contained a disclaimer stating that while the reference was given in good faith, neither the writer nor the Force accepted any responsibility or liability for any loss or damage caused to the addressee or any third party as a result of reliance being placed on it.
AB was offered a new job with a regulatory body, which was conditional on satisfactory references. The Force received a reference request, which included specific questions including the number of days AB had been absent in the previous 12 months, his reason for leaving and any further comments that the referee felt relevant. GH sent a standard form reference, which did not answer these questions.
AB accepted the job offer and resigned from the Force. In his resignation letter he stated that he was leaving because he felt he had been victimised. He requested that, since he had now resigned, the disciplinary hearing should not go ahead. His resignation was accepted and he was sent a letter rejecting his allegations of victimisation and stating that the disciplinary hearing would be stayed.
The Force then wrote to AB, stating that the Chief Constable had become aware that the regulatory body had asked for further information than was provided in the standard reference and the Force had concluded that a further "corrected" response should be sent. A copy of the proposed second reference was enclosed. It gave details of AB's extended absence in the 12 months before his resignation and advised that his resignation was received shortly before a gross misconduct hearing against him was due to commence to deal with allegations of lack of honesty and integrity, discreditable conduct and abuse of authority in relation to a recruitment issue.
AB's solicitors served a notice under section 10(1) of the Data Protection Act 1998 (DPA), requiring the Force to cease processing AB's personal data on the grounds that the processing would cause substantial damage or distress to him that was unwarranted and arguing that it would be unlawful for the Force to send the second reference. Public and private law claims were then issued against the Force.
The Chief Constable argued that he had a legal duty in both private and public law to send the second reference to the regulatory body. The first reference had already been delivered and responsibility to the regulatory body had been assumed so he was obliged to rectify the fact that the reference was incomplete and misleading. He considered that he was subject to more onerous duties than normal because of his role, the Force's status as a public body, the regulatory body's position as a public and regulatory body and AB's position as a senior police officer with a serious disciplinary record. AB claimed that the Chief Constable was under no such duty and that, if he was to send the second reference, it would be a breach of data protection and his legitimate expectations.
High Court decision
The High Court held that the second reference should not be sent.
The first reference had been inadequate, as it gave a misleading impression of AB. However, this did not mean that the Chief Constable had a duty to provide a further reference. The original reference included a clear disclaimer and a reasonable recipient would take it to mean that the Force only provided standard references. This meant that, read as a whole, the reference was not misleading.
The Chief Constable was obliged by his statutory and public duty to act with honesty and integrity. This meant he could not give a standard reference, as it was misleading. However, in the circumstances of this case, he was not free to send the second reference because AB had a legitimate expectation that a standard reference would be provided.
The information in the second reference was personal data under the DPA and the Chief Constable was under an obligation to process it fairly and lawfully. The information concerning AB's sickness absence was sensitive data and AB had not consented to its processing so it could not lawfully be disclosed. With regard to the information concerning the disciplinary proceedings, the court had to balance AB's right to privacy against the public interest in disclosure. Whilst there were many factors in favour of disclosure, if the information were provided it would be contrary to the Force's policy of providing standard references. The balance of fairness lay in not disclosing the information in the second reference, particularly since it could threaten AB's job and he would not have an opportunity to defend the allegations against him as he had already resigned.
This case demonstrates the difficulties that can arise when providing a reference and the competing interests that must be balanced, in particular the duties to the subject of the reference (the employee) and to the recipient (the prospective employer). It acts as a reminder to employers to include disclaimers in references, including standard references. Lastly, it shows how an employee can use a section 10(1) notice to his advantage.