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THE SUPREME COURT OF JUDICATURE
THE COURT OF APPEAL (CIVIL DIVISION)
APPEAL FROM LAMBETH COUNTY COURT
HONOUR JUDGE COX
Courts of Justice
23 October 1998
e f o r e:
JUSTICE ROBERT WALKER
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THE LONDON BOROUGH OF HACKNEY
SAMUEL KENNEDY YEBOAH
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Aided Transcript of the Palantype Notes of
Bernal Reporting Limited, 180 Fleet Street,
0171 831 3183
Shorthand Writers to the Court)
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(Instructed by MU Samuel Egole & Co., London, SW9 8DJ) appeared on behalf
of the Appellant
by Eversheds, London, EC4V 4JL) appeared on behalf of the Respondent (First
Second Defendant did not appear and was not represented
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U D G M E N T
approved by the Court
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JUSTICE BUTLER-SLOSS: I will ask Robert Walker LJ to give the first judgment.
JUSTICE ROBERT WALKER: This is an appeal from an order of Judge Cox made from
5 March 1997 in proceedings in the Shoreditch County Court. Judge Cox
dismissed a claim by Mr Dennis Bartholomew (the plaintiff below and the
appellant in this court) against the London Borough Council of Hackney (the
first defendant below and the respondent in this court). There was also a
claim against Mr Sam Yeboah (the second defendant) but he is no longer involved
in this appeal.
Bartholomew, who appeared in person below but appears by Mr Sisley in this
court, seeks by his amended notice of appeal to have a new trial rather than to
have judgment for damages entered in his favour. That is because, as Mr Sisley
has candidly admitted, the evidence below was insufficient to cover questions
of damage, even if Mr Bartholomew succeeds on the point of principle.
Bartholomew was employed by Hackney as head of its race equality unit until his
employment was terminated on 28 February 1994. Mr Yeboah was, and it may be
still is, head of personnel at Hackney.
case is concerned with a written reference dated 9 June 1995 (that is some
fifteen months after the end of Mr Bartholomew's employment) which was sent by
Hackney's chief executive's office to Miss Jinks of Richmond upon Thames Social
Services. Richmond wrote to Hackney asking for a reference in respect of Mr
Bartholomew because Richmond was minded to offer Mr Bartholomew employment as a
residential social worker. The letter from Miss Jinks asked for a response on
three points in particular: first, for confirmation that Mr Bartholomew had in
fact been employed at the dates and in the posts which he had mentioned;
second, Hackney's assessment of Mr Bartholomew's suitability for the post which
Richmond was offering him; and, third, the number of days of absence because of
ill health which Mr Bartholomew had had while in employment in Hackney.
letter, dated 9 June, responding to the request, was signed by Miss Angela
O'Connor, a directorate personnel officer at Hackney. The letter responded by
giving confirmation to the first point but did not in fact provide any direct
answer to the second or third questions on which information was sought. I
will read the question in its entirety:
am writing in response to your letter to Mr Sam Yeboah dated 6.6.95. Your
letter requested a reference for Mr Dennis Bartholomew who has applied to you
for the post of Residential Social Worker (Care Bank).
Bartholomew commenced employment with this authority in 1984 as a Project
Officer. In January 1992 he was appointed as Head of the Race Equality Unit.
February 1994 Mr Bartholomew took voluntary severance from the Authority's
service following the deletion of his post.
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."
after that reference was sent, and no doubt in consequence of it, Richmond
withdrew the offer of employment which it had made to Mr Bartholomew. It is
not really in dispute that each statement in that letter was factually correct.
Indeed, it appears that Mr Bartholomew agreed as much when that question was
put to him by the County Court Judge. However, Mr Bartholomew says, through Mr
Sisley, that the letter as a whole was unfair and that it was a breach of a
duty of care owed to Mr Bartholomew by Hackney.
was the basis of his claim for damages in a summons and statement of claim
issued on 3 July 1995. Mr Bartholomew pleaded in paragraphs 8 and 9 of his
statement of claim that Hackney had been actuated by a deliberate and unlawful
intention to injure him, but that claim is rightly not pursued on the appeal.
The claim is really based on the principle established by the House of Lords in
the case of
v Guardian Assurance
 2 AC 296
. In that case the House of Lords held by a majority, with Lord
Keith dissenting, that on giving a reference to an ex-employee, in response to
a request by an identified prospective new employer, the ex-employer owes a
duty of care to the ex-employee, that the breach can give rise to a claim for
pure economic loss and that the possibility of such a claim is not excluded by
considerations of public policy which favour candour in references. I note in
passing, as Mr Sisley noted, that the giving of a reference is a paradigm
occasion of qualified privilege for the purposes of the law of libel.
case the reference (for a man who was employed in the financial services
industry) was about as bad as it possibly could have been. After describing
his alleged selfishness towards colleagues, the reference continued:
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."
mention that in order to make clear that in the speeches in the House of Lords
in that case there was 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.
Lord Goff did indeed say at page 320:
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."
at page 340 Lord Woolf referred to:
lack of care in ascertaining the facts on which the reference is based."
Woolf stressed the importance of references because they may have a very
material effect on an ex-employee's prospects of future employment.
citations and also the judgment of Tudor Evans J in
v BOC Transhield Ltd
 IRLR 405, 409 reflect the fact that almost any reference to an
ex-employee is ultimately going to consist of an 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. Nothing in those
authorities seems to me to give much help in the rather different situation
that has arisen in this case.
is a feature of this case that the basic facts essential to its decision and to
the determination of this appeal are relatively simple and are barely in
dispute. But plainly there were other issues, in particular whether Mr
Bartholomew was actually guilty of gross misconduct, which were highly
controversial but which the County Court Judge could not resolve and rightly
made no attempt to resolve. The reference stated correctly that Mr Bartholomew
started employment with Hackney in 1984 and that in January 1992 he was
appointed as head of the race equality unit. The reference then stated with
factual accuracy that Mr Bartholomew took voluntary severance in February 1994,
that at that time he was suspended from work because of a charge of gross
misconduct and that the disciplinary action lapsed automatically with the end
of his employment.
chronology, helpfully supplied by Mr Sisley, fills out to some extent the bare
skeleton of facts provided by the reference. Hackney suspended Mr Bartholomew
by a written notice on 16 September 1993 pending investigations. Mr
Bartholomew responded by issuing an application to the Industrial Tribunal for
London North on 23 October 1993. His application alleged racial
24 November 1993 Hackney gave notice to Mr Bartholomew of complaints against
him which were to be investigated in disciplinary proceedings. They were
described by the Industrial Tribunal at a later hearing as a number of
allegations alleging gross misconduct but giving no further details.
hearing before the Industrial Tribunal began but was by no means concluded on
21 January 1994. Then it seems negotiations for a settlement began. There was
later a question as to whether Mr Beavis, the union representative of Unison,
had authority to sign terms of compromise embodied in form COT 3. The
Industrial Tribunal subsequently held that he did indeed have authority to sign
those terms of compromise. The terms of compromise were as follows:
In full and final settlement of all claims which the applicant has or could
have against the respondent, ... Hackney ... arising from his employment with
the Council, the Council agrees:-
to permit the applicant to take voluntary severance from the Council's service
with effect from 28 February 1994; and
to pay to the applicant nine weeks' salary in lieu of notice.
The applicant agrees to withdraw the above-mentioned originating application
as a precondition of any payment to him under (1) above."
paragraph 3 related to other cases pending in the Industrial Tribunal which had
been brought both against Mr Bartholomew and against the Council by members of
his staff. I need not read that. Paragraph 4:
the avoidance of doubt, the Council confirms that upon the termination of his
employment, the disciplinary action which has been instituted against the
applicant will automatically come to an end."
has not been argued for Mr Bartholomew that those terms, either expressly or
impliedly, restricted Hackney's liberty or its duty to give a true, fair and
accurate reference. Mr Sisley's submission on the contrary is that Hackney's
duty was to give a comprehensive reference in just the same way as it would
have done had there been no exchange of correspondence between the parties.
should perhaps mention at this point that a respondent's notice on behalf of
Hackney suggests in paragraph 4 that Mr Bartholomew's ability to object to a
reference, even if it were untrue, unfair or inaccurate, was restricted by an
estoppel arising out of the exchange of correspondence which I have just
mentioned - that is, to be precise, a letter dated 3 February 1994 from Unison
to Hackney and an indirect response sent by Hackney to ACAS on 16 February
1994. We have not heard argument on the respondent's notice but it seems to me
that that is a point which would be very unlikely to succeed since the exchange
of correspondence, although addressing the question of references, does not
appear to have produced any concluded agreement.
although we have not heard any argument on the rest of the respondent's notice,
I would also regard as very unlikely to succeed the contention in paragraph 1
of the respondent's notice that Mr Bartholomew is halted on the threshold of
his claim because he agreed with the County Court Judge, possibly in answer to
some moderately robust questioning, that the contents of the reference were
factually accurate. I would be inclined to reject the last argument because a
number of discrete statements may be factually accurate, but nevertheless may
in the round give an unfair or potentially unfair impression to the reader.
That is very well understood in the law of defamation, in which one special
principle, the so-called repetition rule, has emerged, that is to say that it
is no defence to a libel action for the defendant to prove that he has
accurately repeated another's libel. Whether it is libellous to state
accurately that a person is under investigation by the police may depend on the
precise words used, and their context: see the decision of the House of Lords in
v Daily Telegraph
 AC 234 and the explanation of that decision by this court in
 QB 123
at 130-132. Neither of those authorities on the law of libel was
referred to in court but both are very well known.
Bartholomew's claim against Hackney was of course a claim in negligence, not
libel. Nevertheless 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.
County Court Judge did not, I think, recognise that sufficiently in deciding
the first point in the case against Mr Bartholomew. The matter was not, in my
judgment, as simple as the County Court Judge seems to have thought. Equally,
on the second point the County Court Judge seems to me to have gone too far in
finding that the exchange of correspondence, to which I have referred,
concluded the matter against Mr Bartholomew. It is therefore necessary to see
whether or not the reference provided by Hackney was in substance true,
accurate and fair.
Sisley, who has put the case for Mr Bartholomew with admirable clarity and
brevity, was asked what in these peculiar circumstances he submitted the
reference should have said. He made three points. First, he said the
reference should have specified that the gross misconduct alleged was of a
financial nature. I find it hard to see that there is anything in that point.
It seems to me that to have referred to gross misconduct of a financial nature
could hardly have made the impact of the reference on Richmond upon Thames
Social Services more favourable, whatever the category of post for which Mr
Bartholomew was applying. The second point that Mr Sisley made was the
reference should have said that Mr Bartholomew strongly denied the charge.
However that, it seems to me, was really implicit in the fact that disciplinary
procedure was, as the reference stated, on foot. Had Mr Bartholomew admitted
the gross misconduct, it is most unlikely that he would have remained in
Hackney's employment at all. Third, Mr Sisley said that the reference should
have stated that Mr Bartholomew was paid six weeks' pay in lieu of salary.
That, it seems to me, is a point which calls for serious consideration.
Nevertheless it seems to me to have been largely implicit in the fact that the
reference did refer to "voluntary severance" that Mr Bartholomew was likely to
have received some payment under the severance scheme. That would have been
particularly well understood in a reference provided by one local authority to
does seem to me necessary to look at the realities of the situation. What in
this situation was Hackney to do in order to fulfil its duty to provide a
reference, and a fair reference, to Mr Bartholomew without being unfair or
misleading to the recipient of the reference? The terms of the letter from
Richmond upon Thames Social Services suggest that the letter was in standard
form and that in turn suggests that Mr Bartholomew had told them little or
nothing about the background to the matter; otherwise it seems to me much more
likely that a specific enquiry would have been made by Richmond. However that
may be, if he considered the realities of the matter, Mr Bartholomew must have
been advised or must have realised on his own account, when he agreed to
compromise his application to the Industrial Tribunal on the terms on which he
did compromise it, that the likely result would be that the serious charges
against him, whatever they were, would not in the end be adjudicated on one way
or the other by any fact-finding court or tribunal. He must, it seems to me,
have expected that Hackney would, or at least might, maintain its position, at
least to the extent that there were matters requiring investigation and
disciplinary proceedings (just as Mr Bartholomew himself, as appears from other
papers in the appeal bundle, has maintained his position of innocence and
victimisation and has done so in a very vigorous manner). Mr Bartholomew could
have attempted to negotiate further with Hackney over the terms in which any
reference might refer to the circumstances of his departure, but either he did
not try to do so or if he did he was not successful. Had it omitted all
reference to the suspension and the disciplinary enquiry Hackney might well, it
seems to me, have considered itself as failing in its civil duty to other local
authorities, their ratepayers and clients. That must be true even though the
charges against Mr Bartholomew were unproven and now, as I have said, are
unlikely ever to be adjudicated on.
would therefore accept Mr Sisley's submission that a reference must not give an
unfair or misleading impression overall, even if its discrete components are
factually correct. I would not go as far as to accept his further submission
that a reference must in every case, and particularly in the unusual
circumstances of this case, be full and comprehensive.
all the circumstances of this case I am not at all persuaded that the reference
as a whole was unfair, inaccurate and false. Its form might have been improved
on in some respects to which Mr Sisley has drawn attention, but I do not
consider, judging the matter in the round, that it constituted a breach of
Hackney's duty of care to Mr Bartholomew.
would therefore dismiss this appeal.
JUSTICE BUTLER-SLOSS: I agree with the judgment that my Lord has given and
that the appeal should be dismissed.
Defendant's appeal dismissed with no order as to costs; Plaintiff's application
for leave to amend the notice of appeal granted; appeal against the first
defendant dismissed with costs; leave to appeal to the House of Lords refused.
order does not form part of the approved judgment)
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