The dangers of negligent misstatements

The recent Court of Appeal decision of Abdel-Khalek v Ali has highlighted the legal duties which apply to those offering references. In this case, Mr Abdel-Khalek, a surgeon, had an offer of employment withdrawn when an unfavourable reference was received. He sued, alleging that the adverse statements made about him were incorrect and provided negligently.

Mr Abdel-Khalek had received acceptable references from the referees specified on his application. However, one of the doctors in the team he was about to join knew someone (Mr Ali) who had previously worked with the surgeon when he was performing a locum role, and telephoned to make enquiries.

As a result of concerns raised during that call and a subsequent follow-up by the hiring manager, the offer of employment was withdrawn. Mr Ali had indicated that there were half a dozen patients of Mr Abdel-Khalek who suffered complications during the time he worked as a locum, and generally gave the impression that the complication rate was higher than would be expected.

The very upset surgeon argued that the information which was communicated about him was untrue, and indeed, the Court found that the numbers of his patients suffering complications had been exaggerated (likely there were only 3 rather than 6 such patients). However, it also found that he had failed to prove there was not a higher than expected level of complications. On that basis, Mr Ali's suggestions in this respect, at least, were not "misstatements".

Because it was the general concern about the greater than expected complication rate that led to the offer being withdrawn, it was found that the other errors of detail were not relevant. Mr Ali therefore ultimately escaped any liability, albeit he had to endure being taken to the High Court and then the Court of Appeal.

This case helpfully confirms that mistakes in the detail of a reference will not necessarily lead to liability, if the overall impression offered is generally accurate, and it is that which is then relied upon. However, it will be a brave reference giver who sets out to rely upon this rule. The significant risks attached to providing references have been reiterated by the Court of Appeal.