The recent case of McKie v Swindon College confirms that the duty for employers not to misrepresent employees can extend beyond what is said in a reference.
Employers are already aware that they are under a duty to take reasonable care when providing references. This well-established principle was set down in the case of Spring v Guardian Assurance where it was held that an employer can be liable to an employee if they provide a negligent reference and the employee suffers loss as a result. The McKie case extends this principle by finding that the duty of care still applied when an e-mail was sent by the Claimant's old employer to his new employer.
Mr McKie worked in a teaching post at Swindon College. In 2002, after seven years' employment at the College, he decided to leave and took up a new role elsewhere. Mr McKie received an excellent reference in which he was commended for his "strong leadership skills" and "positive personality". The reference also stated that staff had a "high degree of respect" for him and indicated that the College were very sorry to lose him.
In 2008, six years after leaving Swindon College, Mr McKie took up a post at the University of Bath. Part of his new role involved visiting Swindon College. The new HR Director at the College wrote to Mr McKie's new employer by e-mail stating that there had been "serious problems" concerning staff relations when Mr McKie worked at the College and that there were also safeguarding issues in relation to students. The e-mail said that Mr McKie had left the College before any formal action could be taken. It also stated that the College were not happy to allow him on its premises, which meant that he could not fulfil part of his new role. The University of Bath immediately dismissed Mr McKie after receiving the e-mail.
In Court many witnesses bore testimony as to the credibility of Mr McKie. His Honour Judge Denyer QC concluded that the contents of the e-mail were "fallacious and untrue". It was clear that there was a causal connection between sending the e-mail and the damage that was caused; Mr McKie's job loss.
Mr McKie argued that the e-mail was a reference and that the contents constituted a negligent mis-statement which led to his job loss. This was a clever argument, designed to bring the facts of the case within the ambit of the Spring v Guardian Assurance decision.
Swindon College and its lawyers must surely have felt that that they were on to a winner when the Judge refused to accept that the e-mail was a reference. That decision was hardly unexpected when you consider the world of difference between a formal reference given for someone and a relatively informal email.
The case was, however, turned on its head when the Judge concluded that, irrespective of whether the email was in the form of a reference, Swindon College still owed Mr McKie a duty of care, despite the fact that he left its employment six years earlier.
Having determined that Swindon College did owe Mr McKie a duty of care, the Judge concluded that the loss stemming from the inaccurate email was reasonably foreseeable and, as a result, Swindon College were liable for damages.
This case has potentially very wide implications. Most employers are conscious of their duties when providing a reference; however, this is something that can be policed fairly easily: most references are provided by senior managers or HR individuals, all of whom should be alert to the dangers of an inaccurate reference.
Extending the duty beyond mere references means that, theoretically, any damaging communication about former employees could leave the employer exposed.
It remains to be seen how widely the courts will be prepared to interpret this decision in the future; however, now is a good time to consider your email and other communications policies and make sure that employees are aware that making negative comments to the outside world about their former colleagues could have serious consequences.
In a situation like this, discretion really is the better part of valour.