Legal Update

Writing a Job Reference? It's Important to Choose Your Words Carefully

Business owners and managers tend to view writing job references as an important but relatively routine task. However, the need to choose words carefully – and to take professional advice where necessary – was underlined by a High Court ruling in a libel case (Smith and Another v Surridge and Others).

After moving on from one secondary school, two teachers received conditional offers to work at another. The specialist recruitment agency through which they had found their prospective new jobs requested a reference from the school.

The reference included the words 'I would like to inform you that there were some safeguarding issues during their time at (the school)'. The teachers denied that there were any such issues and claimed that the reference resulted in the withdrawal of their job offers. They launched proceedings, seeking damages for alleged libel, misuse of private information and negligent misstatement.

In considering the precise meaning of the words as a preliminary issue, the Court noted that the reference was formal correspondence between two organisations that were used to dealing with pre-employment checks. The meaning of the words fell to be judged through the eyes of a hypothetical reasonable reader.

The Court acknowledged that safeguarding is a broad concept. Yet, in the context of a school reference, it was reasonable to assume that the focus of safeguarding is on the protection of children from harm or the risk of harm. However, a reasonable reader of the reference would not have jumped to the conclusion that the 'issues' mentioned related to abuse or maltreatment.

The use of the word 'some' did not indicate that there was more than one issue in respect of each teacher. However, the wording of the reference was clear and a reasonable reader would not have interpreted it as merely suggesting that there were safeguarding allegations or concerns.

The Court found that the reference's meaning was that each teacher did something whilst working at the school that gave rise to a safeguarding issue – something that either caused harm to a child or placed a child at risk of harm. That meaning was defamatory at common law. It was agreed that the words complained of were a statement of fact, rather than opinion.