Negligent Misstatement- Jackson v Liverpool City Council (2011)
Negligent Misstatement-Jackson v Liverpool City Council  EWCA Civ 1068
This Negligent Misstatement case is a rare example when the Court found in favour of the employer. The employee had left with good references, but a later reference was provided by the employer which referred to record keeping issues with the employee but that these issues had never been investigated as to whether they were true and accurate. The Court of Appeal felt that the employer could not be criticised for referring to these allegations as it was made clear in the reference that the allegations where untested and unsubstantiated.
- The fact that the employee failed to get the job was unfortunate.
- Relevant to the claim was the fact that the employee left before the allegations had been investigated . Also the reference stated that if the allegation had been found to be true then it would have resulted in a performance plan rather than disciplinary action. This meant that the reference was both true and accurate and was not misleading.
- An employer is under a duty of care as to references. The employer will breach that duty if the reference is false, inaccurate or misleading.
- This case provides useful guidance on how to deal with a situation when an employee leaves before concerns about their performance or conduct can be investigated. The employer can disclose the allegations as long as it makes it clear that they have not been investigated and therefore no assumptions should be drawn. Also if it is confirmed that, regardless of the outcome of the investigation, the employee would not have been dismissed.
- If an employee leaves in circumstances where there are questions over their performance or conduct, or they arise after they have left, employers should disclose such issues accurately to any new employer. They should make it absolutely clear that they have not been investigated and that no assumptions can be made.
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First published December 2011 revised 26 May 2012