In the recent Court of Appeal case of Abdel-Khalek v Ali , heard on 25th January 2016, the Court of Appeal decided unanimously to dismiss the appeal of a surgeon ( Mr Abdel-Kalek). Mr Abdel-Kalek had appealed against the decision of a court that he had not suffered negligent misstatement when a former colleague (Mr Ali) informed a new prospective employer that there had been 6 complications in surgery during a 4 month period in which he had worked with Mr Abdel- Kalek.
The prospective employer withdrew their job offer based upon this statement. It was later proved that there had in fact only been 3 complications with the surgery performed by Mr Abdel- Kalek, yet the Judge at the initial court felt that this error in detail was not the impression sought to be conveyed by Mr Ali but rather that there was a higher than normal complication rate in a short period of time.
The Court of Appeal dismissed the appeal and agreed with the original Judge in determining that it was the impression of a higher than expected complication rate that led to the job offer being withdrawn. Mr Abdel- Kalek did not establish in his case that it was a wrong impression.
This is an interesting case as it highlights that the answer may not always be in the detail, but the overall impression of a reference. Employers should, however, be careful to ensure that only authorised people within an organisation give formal references in order to seek to avoid the vicarious liability of the acts of employees.
Claimants should reassess their cases to ensure that it is not only the detail of a statement that they may need to disprove, but also that the impression sought to be imparted by that detail and the cause of the damage suffered.
The judgement and a link to the case can be found below.
The Judge's conclusion was that there were two negligent misstatements by the Defendant, first that there had been about six patients with complications and second that two of those cases had gone or were expected to go to litigation. However the Judge concluded that the Claimant could not show that but for the making of those statements the job offer would not have been withdrawn. That is because the critical factor is that Mr Watson was given the impression that the complication rate was higher than would be expected, and that is why he withdrew the job offer. The Claimant did not demonstrate that that was a wrong impression. The Judge's approach was in my view impeccable.