Previous employer liable for negligent email to current employer

This recent High Court decision found the previous employer liable for negligent email to current employer and sends a cautionary message to employers who engage in any communications, not limited to references, which may have a financial impact on former employees.

Mr McKie is an art historian who had been employed by Swindon College from 1995 until November 2002 when he left to work at City of Bath College. He had not been the subject of any disciplinary action and a glowing reference was provided by Swindon College which concluded that Mr McKie was highly recommended and that Swindon College was very sorry to be losing him.

Over the next 6 years Mr McKie worked for a number of educational institutions until May 2008 when he was appointed as Director of Studies in the division of lifelong learning at the University of Bath.

The University oversees degree courses at certain Further Education Colleges, one of which was Swindon College and part of Mr McKie’s duties would involve liaising with and visiting those further education colleges.

On 5 June 2008, a matter of weeks after starting the new job, the HR Director at the University received an email from his equivalent at Swindon College. The email stated:

“I can confirm to you that we would be unable to accept Rob McKie on our premises or delivering to our students. The reason for this is that 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.”

In response to the College’s email, Mr McKie was invited to attend a meeting by his new employer on the grounds that Swindon College asserting that they did not want him on their premises had given rise to a serious impediment to his capacity to undertake his duties. Mr McKie was summarily dismissed by the University.

Mr McKie subsequently made a claim against the College for negligence.

The Human Resources Manager at Swindon College who sent the email was not an employee of the College at the same time as Mr McKie. The Human Resources Manager claimed that the email was sanctioned by the current Vice Principal of Swindon College but no evidence was brought to the High Court to support this. Swindon College also claimed that they had referred Mr McKie to a psychologist during his employment. However, no report was produced as evidence and none of the other witnesses from Swindon College were aware of such a report.

The High Court found that the contents of the email had been “fallacious and untrue”. The procedure adopted at Swindon College in sending the email could be described as slapdash, sloppy and failing to comply with any sort of minimum standards of fairness. They remarked that, if, as the HR Director accepted, it was blindingly obvious that the email would have an impact on Mr McKie’s employment situation “at the very least one would have expected that there would be a formal meeting, a formal discussion, a formal examination of the personnel record, a formal recording of the process that led to the taking of the decision, not winging off an email ….”.

The High Court decided that the College did owe a duty of care to Mr McKie not to make negligent misstatements to a current employer and concluded that the circumstances surrounding the sending of the email flouted elementary standards of fairness, diligence, proper enquiry and natural justice.

The Court also found that the dismissal was unfair but given that Mr McKie had not accrues a year’s service with the University he had no protection under unfair dismissal legislation.

It is well established in employment law that an employer can be liable for damages if they give a negligent reference about a former employee which is inaccurate and the employee suffers financial loss as a result. However, in this case, the employer was held to be liable for sending a negligent email about a former employee to their current employer. The email was not a reference but contained certain allegations which resulted in the former employee losing their current position.

The case has therefore extended the scope of liability for negligent misstatement from references supplied by employers, to any statements made by employers about a former employee. A “negligent misstatement” doesn’t have to be contained in a reference, it can be contained in any form of communication between former and current employers. There is no reason why the same principles would not also be extended to conversations that may take place between parties and therefore employers need to think twice about passing even casual comment regarding a former member of staff where there is a prospect that this may have a detrimental effect on that person’s career prospects. Employers should therefore put procedures in place which check any outgoing correspondence or emails concerning former employees to their current or prospective employers, to ensure that the information contained within them are accurate, can be verified and is not misleading.

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