Employers who provide references about their staff must take reasonable care to ensure the information disclosed is true, accurate and fair. Schools and colleges also have tell the recipient if an employee has been subjected to a formal capability procedure and reference any safeguarding concerns they have.
In Smith v Surridge and others, the High Court had to decide if a school, its trustees and two of its governors had defamed two of its former teachers when it supplied a reference with said that it had ‘some safeguarding concerns’ about them.
Ms Smith and Ms Jackson taught at Stanborough School for four years. They left and started new jobs at a different school. Those jobs came to an end and they registered with a job agency and were offered new teaching roles, conditional upon obtaining suitable references from their last two employers.
The job agency asked Stanborough for a reference. It needed details of their employment dates and confirmation that there were no safeguarding issues. After being chased a number of times, the head-teacher’s PA emailed a brief reference. It included the following information.
‘However, I would like to inform you that there were some safeguarding issues during their time at Stanborough School. We will fill in the forms you have sent us in detail and send these to you shortly.’
As a result, the job offers were withdrawn and both teachers issued proceedings in the High Court for libel, misuse of private information and negligent misstatement.
The teachers argued that the reference to ‘some safeguarding issues’ inferred that they had abused and mistreated pupils and/or that they were guilty of misconduct. The school argued that this comment had to be considered in the context of a series of emails about the references and, that the language it used, reflected the wording in the request which asked if it had any safeguarding ‘concerns’.
The Judge said that a hypothetical reader would have taken the reference at face value. They would understand that safeguarding is a broad term with wide meaning and wouldn’t necessarily jump to the conclusion that these ‘concerns’ were at the more serious end of the spectrum. But they would assume that something had happened.
The Judge said that the words used meant that during the time the teachers worked at the school, they did something that gave rise to a safeguarding issue: specifically, something that either caused harm to a child or placed a child at risk of harm. And, that was defamatory at common law.
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