Jackson v Liverpool City Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Leveson,Lord Justice Richards,Lord Justice Maurice Kay |
| Judgment Date | 15 June 2011 |
| Neutral Citation | [2011] EWCA Civ 1068 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 June 2011 |
| Docket Number | Case No: B2/2010/1798 |
[2011] EWCA Civ 1068
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
HIS HONOUR JUDGE RODERICK GORE QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay
Lord Justice Richards
and
Lord Justice Leveson
Case No: B2/2010/1798
The Respondent appeared in person.
Mr James Boyd (instructed by Liverpool City Council) appeared on behalf of the Appellant.
On 25 September 2007 the claimant, Mark Jackson, left his employment of some 12 years as a social worker on the youth offending team with Liverpool City Council ("Liverpool") in order to take up employment with Sefton Borough Council ("Sefton") in their Adult Services Department. For the purposes of securing that employment he received a favourable reference, dated 23 August 2007, from his then team manager, Pat Keegan. One year later he applied for a post at Sefton in its Youth Offending Service, which itself was subject to satisfactory references. Two references were provided which were satisfactory. One reference, however, was provided by his former employers at Liverpool, and in particular by Catherine Griffiths, who is the group manager of the Youth Offending Service, this reference raised a concern.
In the event, Mr Jackson did not obtain the employment he sought and was unemployed for one year before obtaining further employment with similar earnings, albeit not in his preferred field. Before obtaining that employment Mr Jackson commenced proceedings for damages in relation to the reference which Liverpool had provided. On 28 July 2010 this action came before HHJ Gore QC in the Liverpool County Court. The judge held that the reference was unfair and found in favour of Mr Jackson, leaving the assessment of damages to a further hearing. With the leave of Rix LJ, Liverpool now appeal that finding.
The facts were not essentially in dispute. There is no suggestion that the references which Mr Jackson received from Sefton were not clearly favourable and the original references from Liverpool had similarly been favourable. For this post, however, the Liverpool reference provided by Mrs Griffiths dated 3 October 2008 was not complete. It rated his time-keeping and relationships with colleagues as very good; his honesty and integrity as good, and his work performance as average. She did not provide answers to the questions "Would you re-employ them? Do you know of any reasons why we should not employ the applicant?"; but, in answer to a question about the applicant's weaknesses, observed:
"There were some issues identified by his team manager in respect of recording and recordkeeping. This was addressed by a supervision and would have led on to a formal improvement plan to assist Mark to make improvements in this area. Mark left the service before this process was instigated."
By way of balance it is important to underline that she also identified Mr Jackson's strengths in this way:
"Mark was able to form good relationships with members of his team and was willing to assist colleagues. He is familiar with the youth-offending recording system and has extensive knowledge of court orders and the requirements of these orders."
The background to the change of view as to the applicant's weaknesses was explained by Mrs Griffiths in this way. One month after Mr Jackson had left she had met his team manager, Pat Keegan, who then highlighted concerns that had been brought to her attention by other members of the team who had taken over supervision case files relating to young people who had previously been supervised by Mr Jackson. The concern was that work and contact with certain individuals had not been carried out, although the records suggested that it had been. She asked for written evidence and received three emails from different social workers concerning four offenders. In the light of the judge's comments we set out the detail, albeit without identifying individuals concerned.
The first concerned a girl of 14, made the subject of a nine-month referral order for attempted robbery to start on 28 June 2007. There was an issue whether a document had been completed, but, more significantly, although she had attended on five occasions, no offending behaviour or victim awareness work had been done. She had failed to attend a referral in relation to reparation, stating that she was ill, which explanation Mr Jackson had accepted without supporting evidence. The girl reported, noted as an allegation only, that Mr Jackson told her that she did not have to worry about completing any work.
The second concerned a boy of 14 convicted of possessing an imitation fire arm and attempted robbery. The judge accepted this allegation concerned inaccuracy or misrepresentation of record-keeping. The review panel report in his case stated that he had attended a programme for the violent offenders group, although there was no evidence to confirm that he had done so and the boy denied it. Further, he and his mother (who always attended with her son because of his medical condition) insisted that he had only had contact with the youth offending service at the end of July 2007, whereas he was reported as attending on three further occasions in August and September.
The third concerns another boy in respect of whom there was no evidence that he had done any offending behaviour work other than 19 out of 40 hours' reparation. There were two other referrals but no follow up appointments. When asked what he had done the boy said that he used to talk to Mr Jackson about cars.
Finally, another boy reported that Mr Jackson advised that he could see two social workers on the same day and that this would count as two appointments. There was also an absence of information as to significant personal risk which should have led to the system being updated to ensure that it was noted that the police had advised against home visits.
It is important to underline that these were reports and allegations only; none has been tested or proved. When the report surfaced, however, the Head of Service at Liverpool had to consider the position in the light of the fact that Mr Jackson had left the service. It was concluded that none could be investigated. When the request for the reference was made, Mrs Griffiths again consulted the Head of Service and so was advised on the answers to the request. Mrs Griffiths made clear in her statement (although, as I shall record, the judge does not comment on this evidence) that when she received the telephone call from the Head of Sefton's Youth Offending Team she explained the specific concerns but made it clear that as Mr Jackson had left his employ with Liverpool the allegations had not been investigated formally so that she was unable to answer the questions "in either a positive or negative manner". In fairness to Mr Jackson I add, as did the judge, that when he was asked about the most specific allegation he said that he was not responsible for carrying out this work and no evidence was adduced to contradict what he said. As to the other allegations, HHJ Gore considered the concerns entirely unparticularised and unspecific. It is sufficient if I indicate that it does not appear to me that what appears in the emails from the social workers which I have summarised justifies being criticised in that way.
The judge concluded that Mrs Griffiths was being truthful when she said that concerns or allegations had been raised. The judge went on:
"Moreover, insofar as the existence of those concerns surface in the reference process by which he seeks alternative employment, I am also satisfied that she is correct when she says that the position was accurately represented to Sefton. Accurately represented in these senses: she did not raise any specific allegations against him, nor did she allege that any investigation had been undertaken or that he was guilty of any of the allegations or concerns. In other words, the furthest that this was represented as having gone was the existence of concerns or allegations."
Turning to the law, the judge quoted from Harvey on Employment Law 14 th Edition, paragraph 2281, in these terms:
"The general rule is that the employer is under no duty to provide a character reference for an employee or ex-employee […] But if he does provide a reference then he should take care to provide a reference which is true, accurate and fair, otherwise he may incur liability."
The judge considered that the reference was true and accurate. In considering the question of fairness, he went on to say that Mrs Griffiths had not personally gone to the computer records to investigate or verify these concerns, although he recognised that the circumstances fell outside any established code or guidance or practice, given that Mr Jackson was no longer an employee. The judge also accepted that Mrs Griffiths had not decided that Mr Jackson was guilty of any impropriety.
Judge Gore recognised that there were many reasons why it was not practicable to establish a formal investigation against the employee, but he observed that, although possibly ill advised, they could investigate or refuse to provide a reference at all. To the observation of Mr James Boyd, counsel for Liverpool, that failing to provide a reference might expose them to an action for breach of contract based on an implied duty to provide references for ex-employees, the judge observed that such was not the subject matter of the action and, in any event, could be answered by saying that outstanding allegations or concerns had not been...
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