Be careful what you say - you might be at risk for longer than you think
23/06/2011
By Nick Hobden, Partner and Head of Employment
It is fairly well known that employers owe their employees and former employees a duty to take reasonable care in the preparation of references. But the recent case of McKie v Swindon College (2011) grappled with the question of whether other comments made in an email that did not constitute a reference might also be covered by this duty.
The facts
Mr McKie worked for Swindon College for about seven years. Upon leaving, he was provided with an excellent reference which assisted him in obtaining new employment. However about six years later, having moved job again, he found himself in a role that required him to work with Swindon College once more. Unfortunately, Swindon College was perturbed by this and wrote to Mr McKie's new employers, Bath University, raising concerns relating to safeguarding and "serious staff relationship problems" that it alleged arose whilst Mr McKie was in the college's employment. As a result of this email, Mr McKie was dismissed from his new job. Mr McKie brought a claim against the college, alleging negligent misstatement.
The decision
In the High Court, the judge considered that the college's email was not a reference; it was not produced for the purposes of considering whether Mr McKie should be offered employment. However taking account of:
- the previous employment relationship;
- the fact that the effect of the email was so foreseeable; and
- concepts of fairness, justice and reasonableness
the High Court judge concluded that it was right to impose a duty of care on the college in respect of the preparation of such an email. Therefore, bearing in mind that the content of the email was largely untrue, the college was found to have breached its legal duties towards Mr McKie.
Comment
This case underlines the importance of employers taking great care in what they say about their current and former employees, whether in response to formal reference requests or otherwise. As this case shows, even if comments are made many years after the employment relationship has come to an end, an employer can be found responsible for any losses that a person suffers as a result.
Many employers nowadays provide very brief, factual references in an effort to reduce the risks. In addition, it is not unusual for employers to include in their standard references disclaimers that are longer than the reference itself. It is even tempting to consider giving no references at all. After all, if you say nothing, you cannot say anything wrong. This is unlikely to be a sustainable position in the long run. But when passing a comment, particularly a negative one, the risks are clear and need to be managed accordingly.