Be Careful What You Say

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18 May 2011

When it comes to giving a reference, most employers are well aware of their duty to take reasonable care in preparing a reference.  However, a recent case illustrates that a duty of care to a former employee when passing on information about him or her extends to non-reference situations too.

In the case of McKie v Swindon College, the High Court found that Swindon College was liable to Mr McKie in damages for negligent misstatement for making careless and fallacious comments about him in an email to his new employer.

The email from the HR director at Swindon College to his equivalent at the University of Bath mentioned that "we had very real safeguarding concerns for our students and there were real staff relationship problems during his employment at this college".  This email was sent six years after Mr McKie had left his employment at Swindon College and there were no complaints recorded on his personnel file to substantiate the information in the email.

Mr McKie was dismissed as a result of the email and although the Judge commented that the University of Bath had acted unfairly and improperly in dismissing Mr McKie without investigation, he had only been employed for a few weeks so he did not have the requisite continuous service to bring an unfair dismissal claim.  He, therefore, took the unusual action of bringing a claim against Swindon College to recover damages for negligent misstatement.

Although the facts of the case are slightly unusual, it is an important case for employers to bear in mind when providing information about former employees.

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