An employer was liable in damages to its former employee for negligent misstatement when it send, six years after he’d left, a disparaging email to his subsequent employer which led to his dismissal. The fact that this information was not contained in a formal reference was irrelevant: it was eminently foreseeable that the damaging information would cause loss to the ex-employee and as such the ex-employer owed him a duty of care.
It’s well known that employers owe a positive duty of care when they provide a reference for a former employee. If the reference is inaccurate or the employee can show that they’ve suffered a loss (e.g. failing to get a job as a result, see for example Bullimore v Pothecary Witham Weld), then the provider of the reference can be liable in negligence.
Mr Mckie, a 58-year-old art historian, had worked as teacher at Swindon College for seven years until he left in 2002 with a glowing reference. In 2008 he started work as the Director of Studies at the University of Bath. The university was responsible for overseeing degree courses at FE colleges and part of Mr McKie’s new duties involved liaising with and visiting Swindon College, his former employer. Shortly after he had started work in his new post, the new HR Director at Swindon College sent an e-mail to the university stating that the college would not allow Mr Mckie onto its premises because it had safeguarding concerns in relation to its students and there had been serious staff relationship problems during Mr McKie’s time there. He added that Mr McKie had left the college before any formal action could be taken and that he understood that similar incidents had arisen at another FE college. The contents of that e-mail resulted in Mr McKie’s summary dismissal by the university.
Mr McKie brought a High Court claim for damages in negligence - as he’d only worked there for a few weeks he couldn’t bring an unfair dismissal claim. The court was satisfied that Mr McKie was a highly respected member of staff while at Swindon College and that the contents of the e-mail were ‘fallacious and untrue’ and its preparation had been ‘sloppy and slapdash’. The court referred to the House of Lords 1994 landmark decision on references, Spring v Guardian Assurance plc, where it was held that an employer who provides a reference in respect of a former employee has a duty to take reasonable care in the preparation of that reference and will be liable to the employee in negligence if the reference is inaccurate and the employee suffers loss as a result. Mr McKie argued that the e-mail was in fact a reference, and that the college owed him a duty to take reasonable care in supplying it. The court rejected that argument as this was plainly not a reference situation: the email had nothing to do with his appointment. But it nevertheless upheld Mr McKie’s claim. He had suffered financial damage by losing his job with the university; the damage was ‘eminently foreseeable’; there was a close enough connection between the negligent e-mail and the damage suffered; and the relationship between Mr McKie and the college was sufficiently proximate to give rise to a duty of care, even though 6 years had passed since he’d worked for the college.
James Tait, employment lawyer at Browne Jacobson, comments: ‘Employers now need to be very careful indeed when providing comments about former employees whether by way of a reference or not. They should not be fooled into thinking that making verbal or e-mail commentary of this nature will simply be forgotten purely because it is not a formal reference. Such comments are equally as important as though provided in the form of a reference. If slapdash comments are made which cannot be substantiated, and if the employee loses out as a result, the employer can be held to account. In some cases, the damages could be significant. Employers would therefore be well advised to review their systems, and ensure that staff are made aware of the fact that if enquiries are made of a former employee then comments, whether by way of a reference or otherwise, should only be made by authorised staff who are aware of the implications of this case’.
Published with kind permission of Craig Gordon, HR Bullets.
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