Mind what you say about a former employee !

19th May 2011 Employers are accustomed to being careful about what they say in an employment reference. However, a recent case indicates that such caution should be extended to comments made in other documents or communication about a former (or current) employee.

It has been well established since the case of Spring v Guardian Assurance in 1995, that employers will be at risk from an employee bringing a claim against it when the employer sends a negligent reference about him or her to a potential new employer. That case established that a duty of care arises when an employer prepares an employment reference, and the employer will be liable to the employee if the reference is inaccurate and the employee suffers financial loss as a result.

A recent case provides further reason for employers to be careful not just in preparing an explicit reference, but other documents commenting about an employee or former employee. The High Court case of McKie v Swindon College concerned a former member of staff, Mr Mckie. He had been employed by Swindon College between 1995 and 2002. He received a good reference when he left the College's employment, to start working at the University of Bath. The University was responsible for overseeing degree courses run at Swindon College, and after a while Mr McKie was given a new role at the University which involved him having to visit Swindon College. The new HR Director at Swindon College sent an e-mail to the University stating that Swindon College would not permit Mr McKie on the College premises because it had "safeguarding" concerns in relation to its students and claimed that there had been serious staff relationship problems during the period that Mr McKie was employed at the College. It was noted by the judge in this case that the HR Director had not been employed at the College while Mr McKie was employed there, and had no direct knowledge of Mr McKie's work. As a consequence of the e-mail Mr McKie was dismissed from his employment by the University of Bath.

The judge concluded that there was no evidence to support the comments made in the e-mail. He described  the contents of the e-mail as "sloppy", "fallacious and untrue". It was clear that Mr McKie lost his job at the University of Bath as a direct result of the content of the e-mail.

Mr McKie sought to argue that the e-mail amounted to an employment reference (seeking to rely on the effect of the Spring v Guardian Assurance case), and that a duty of care had been owed directly to him in the preparing of it. However, the judge rejected that particular argument, and noted it was clearly not a reference. However, the judge still upheld the claim of Mr McKie on the basis that there was a clear causal link between the e-mail and Mr McKie losing his job at the University. The judge ruled that the loss suffered by Mr Mckie was "eminently foreseeable", and that the relationship between Mr Mckie and the College was close enough to give rise to a duty of care (even though it had been six years since he had worked for the College). Therefore while the negligent misstatement made by the College in the e-mail to the University had not resulted in loss or damage being sustained by the University, it had resulted in the foreseeable loss to Mr McKie, so Mr McKie succeeded in his claim.

This case should not deter employers from giving good reference for good employees where good references are justified. However it highlights the need to be careful and cautious when making comments about an employee (and former employee) even beyond the setting of an employment reference. The case also emphasises that employers will need to be confident that they have credible evidence to support any comments that they may make about an employee. We frequently find that employers are willing to express fault and criticism about a former employee that was not formally raised with that employee  when the problem or fault arose. This case indicates that it can be dangerous if an employer expresses such criticisms about a former employee to a new employer (or potential employer) after they have left where there is an absence of documentary evidence to support those criticisms. This case shows that in the absence of that formal evidence the court will conclude that there were no real concerns about the employee in question. So, employers should be prepared to record and address their concerns when they happen, rather than raise them later to a new employer. At Hallett Employment Law Services we can assist you in dealing with these issues properly and fairly so that the risk of a case like this arising is reduced.

If you require any advice on issues raised in this article please do not hesitate to contact us.