Skip to main content

Continuing duty of care to former employees

It's long been established that an employer providing a reference owes the relevant employee a duty to take reasonable care in the preparation of the…

It's long been established that an employer who is providing a reference owes the relevant employee a duty to take reasonable care in the preparation of the reference. If the employer breaches that duty, the employee can sue the employer for any losses arising (e.g. due to a withdrawn job offer) on the basis of negligent misstatement by the employer (see the House of Lords decision in Spring v Guardian Assurance [1994]). In McKie v Swindon College [2011], however, the High Court had to consider whether an employer owed a former employee a duty of care in respect of negative comments it made about him in an e-mail to his current employer some six years after the employee had left.

Background facts

Mr McKie worked for Swindon College until 2002, at which time he left to work for Bath City College. Swindon College gave him an excellent reference. He subsequently moved to Bristol City College in 2007 and then on to the University of Bath in May 2008, where he became director of studies.

The University of Bath oversees degree courses at further education colleges, including Swindon College, and Mr McKie's new job would involve him in liaising with and visiting those colleges. However, in June 2008, Swindon College's HR Director sent an e-mail to the University of Bath, stating: "We would be unable to accept Rob McKie on our premises or delivering to our students... we had very real safeguarding concerns for our students and there were serious staff relationship problems during his employment at this college. No formal action was taken against Mr McKie because he had left our employment before this was instigated. I understand that similar issues arose at the City of Bath College."

Owing to this e-mail, the University of Bath dismissed Mr McKie. Mr McKie sued Swindon College for negligent misstatement.

The court hearing

Having heard the evidence, the High Court found that:

  • While at Swindon College, Mr McKie had been a "well-regarded, highly respected member of staff... an exemplary professional", and that the contents of Swindon College's e-mail were "largely fallacious and untrue";
  • The HR Director who wrote the e-mail had no personal knowledge of Mr McKie; instead, the HR Director had written the e-mail following comments made to him by a colleague, whose evidence "in no way" justified the contents of the e-mail;
  • The procedure adopted at Swindon College in respect of the e-mail was slapdash and failed to comply with any minimum standards of fairness. The High Court was critical of the HR Director's decision to disregard the contents of Mr McKie's personnel file (which recorded promotions and indicated no complaints);
  • Given the acceptance by Swindon College’s HR Director that the comments in the e-mail would have an impact on Mr McKie's employment situation with the University of Bath, Swindon College should have gone through a formal process before sending the e-mail.

The High Court concluded that, whilst this was not a "reference situation" as Swindon College's e-mail had nothing to do with Mr McKie's appointment for a job, Swindon College owed a duty of care towards Mr McKie and were liable for negligent misstatement in accordance with the established test:

  • Was it reasonably foreseeable that the conduct of the defendant would cause loss to the claimant? Yes, particularly given that Swindon College realised that its e-mail might have an impact on Mr McKie's employment with the University of Bath;
  • Was there a sufficient degree of proximity between the claimant and the defendant? Yes: although six years had elapsed between the end of Mr McKie's employment with Swindon College and the e-mail, the college had itself brought about the necessary degree of proximity by purportedly relying on information concerning that employment relationship;
  • Would it be fair, just and reasonable to impose a duty of care in the circumstances? Yes.

The judge also concluded Swindon College's negligent misstatement caused Mr McKie's dismissal.

Comment

This case illustrates that an employer's duty of care to comment accurately about its former employees extends beyond the reference situation: managers would always be advised to ensure that they make proper enquiries before making any derogatory comments about a former employee and that any such comments are both accurate and consistent with any earlier reference.

Whilst most employers are unlikely to adopt such a flawed approach as Swindon College, there are often situations in which an employee is given a good reference as part of a termination agreement, even though the contents of the reference may not accord with his/her colleague's actual views. McKie illustrates that the passage of time may not be a safeguard for the employer if a manager subsequently decides to provide a different assessment of his/her former colleague.

Mark Landon, Partner, mark.landon@weightmans.com