The Queen’s Bench Division of the High Court has held that an employer may be liable to a former employee for damages for negligent misstatement when communicating with a future employer about him.

The case in question was McKie v Swindon College. Mr McKie was an employee of Swindon College (the College) from 1994 until 2002. On leaving the post at the College Mr McKie received an excellent reference. In 2008 Mr McKie began employment at Bath University (the University) as a Study Director, a role which required him to liaise with his previous employer, the College. Early on in Mr McKie’s employment with the University, the HR Manager of the College sent an email on behalf of the College to his counterpart at the University. This email was in very damaging terms and was found, on the facts, to be “fallacious and untrue”. The email ultimately caused Mr McKie to lose his job with the University.

The Decision

The court held that although this case did not involve an employer reference and there was no contractual duty due to the lapse in time, a duty of care did apply. The damage sustained by Mr McKie was foreseeable and the relationship between Mr McKie and the College was sufficiently proximate. Further the court found that it was fair, just and reasonable to impose a duty of care upon the College in the circumstances of this case, and that there was a causal connection between the sending of the email and the damage sustained by Mr McKie. In taking each of these factors into account the court found in favour of Mr McKie.

Implications of the Decision

It is widely known that an employee can make a claim following a negligently prepared reference by his employer. This case goes one step further and is authority for the fact that this principle is extended to cases involving statements, which are not references, made by former employers.

Former employers need to ensure that unjustified statements regarding former employees are never made, therefore avoiding the risk of a claim being raised against them. Further, it may be a good idea for organisations to institute required standards in relation to communication regarding former employees in order to avoid the risk of liability in circumstances similar to those in this case.

Further information

For further information on the issues raised in this ezine, please contact Murray McCall or your usual contact within the Employment Team.

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