Member Article

It is well established that an employer who provides a reference owes the employee who is the subject of the reference a duty to take reasonable care in preparing the reference.  But what about statements by a former employer that do not form part of a reference
?  In McKie v Swindon College, the High Court has held that a former employer, which made critical comments six years after the employee in question had left the organisation, owed its former employee a duty of care and was liable to him for the losses he suffered as a result.

Mr McKie had been an employee of Swindon College for seven years when he left to take up another job with a glowing reference from the college.  Six years later, Mr McKie became director of studies at the University of Bath.  As part of his role he was required to liaise with certain further education colleges, including Swindon College. 

The HR Director at Swindon College emailed the HR Director at the University of Bath stating that the college would be unable to accept Mr McKie onto its premises due to "very real safeguarding concerns for students" and "serious staff relationship problems" which occurred while Mr McKie was their employee.  The HR Director also claimed that similar issues in relation to Mr McKie had arisen at another college.  Following receipt of this email, the University of Bath dismissed Mr McKie. 

The High Court held that it was reasonably foreseeable that the email would have an impact on Mr McKie's employment with the university.  Although six years had passed since the termination of employment with Swindon College, the fact that there had been an employment relationship and that the college had chosen to make comments about Mr McKie to his new employer meant that there was a sufficiently close link between them for the college to owe Mr McKie a duty of care.  In all the circumstances, it was fair, just and reasonable to impose a duty of care on the college.

The court went on to consider whether the email amounted to a breach of that duty.  It found that the author of the email did not know Mr McKie personally, had never worked with him, and had relied on comments made to him by another colleague (which were totally at odds with the evidence presented at trial, all of which pointed to his having been an exemplary professional).  It also found that the procedure in relation to the preparation and sending of the email was "slapdash, sloppy, failing to comply with any sort of minimum standards of fairness", and therefore the college had breached its duty of care and was liable to Mr McKie for his losses.

Impact on employers

• This case highlights that employers should act cautiously in commenting on former employees whether or not such comments are made as part of a formal reference.  
  
• If an employer considers that it is important to highlight concerns that it may have regarding a former employee to another organisation, it is important that it ensures it has its facts right in the first place, and has followed some form of fair procedure or mechanism to double check the accuracy of the contents, prior to issuing any statements.
  
• In this case Mr McKie had less than one year's service with the University of Bath and could not bring a claim of unfair dismissal against his new employer.  However, in most cases, dismissing an employee on receipt of unfavourable information from a third party without adequately investigating the circumstances or allowing the employee an opportunity to put forward their side of the story is likely to lead to a claim for unfair dismissal.