Watch what you say about ex-employees!

The legal background

When it comes to giving references about former, or even existing, members of staff, the law is quite clear: whatever the company says about them must be “fair, accurate and truthful”. If it isn’t, the reference subject will have grounds for a claim. Unfortunately, a recent High Court case - McKie v Swindon College 2011 - has extended this legal principle even further. So what happened?

Case in question

Mr McKie (M) left Swindon College (SC) in 2002 to work for another employer. At that time it provided him with a glowing reference. In 2008, M took up a different post with the University of Bath. That role involved him visiting various colleges of further education, including SC.

Objection!

A few weeks after he had started, SC sent the university an e-mail. It stated that M would not be allowed onto its premises because there were “real safeguarding concerns for the students” and “serious staff relationship problems had existed during his employment”. This was despite the fact that no concerns were ever raised when he worked at SC and he never faced any disciplinary action throughout his time there.

Denied. Although he hadn’t actually done anything, the university felt that M’s position was untenable and dismissed him. As he didn’t have one year’s service, he couldn’t bring an unfair dismissal claim. But he was a man with a plan: instead of going after them, M sued SC for making a negligent misstatement about him.

Onto a winner?

But this type of case hadn’t been tested before. To succeed, M had to prove that: (1) SC owed him a duty of care; (2) it had breached that duty of care; (3) the breach caused him to suffer a financial loss; and (4) this loss was reasonably foreseeable. The High Court found in his favour and awarded him substantial damages. This was because:

• SC ought to have known that an e-mail along these lines would have an adverse impact on M’s employment with the university
• the parties still had a sufficiently proximate relationship; the fact M hadn’t worked with SC for over six years was irrelevant; and
• it was fair and reasonable in all the circumstances to impose such a duty on SC.

Important point

The judge also noted that not only was there no evidence to support the suggestion of misconduct on M’s part, it was “completely and utterly unproven”. However, this ruling doesn’t just apply to comments made to potential employers - ex-employees may also be able to bring a claim if false, or misleading, statements are made to professional bodies, credit reference agencies or other regulatory authorities.

Tip. Following this case, vigilance is needed over any statements - not just references - relating to ex-employees. Problems are most likely to arise if they are made by junior staff. So insist they refrain from making comments about former colleagues and that they always pass communications relating to them on to the directors.