03 May 2011

It is with thanks to Daniel Barnett that we can highlight a case to the CIPP members in respect of negligent (non) references. This case involves communication that although was not a direct reference from a previous employer, was nevertheless a communication that was deemed inappropriate without duty of care being applied, resulting in a dismissal.

Daniel Barnett reports that the QBD has handed down its decision in McKie v Swindon College, which is authority for the proposition that an employer may be liable to a former employee in tort for damages for negligent misstatement when communicating with a future employer about him.

It is well established, since Spring v Guardian Assurance [1995] 2 AC 296, that an employee may make such a claim following a reference negligently prepared by an employer. HH Judge Denyer QC extended this principle to a statement made by a former employer which was not a reference.

McKie was an exemplary employee of the College. He received a fine reference when he left. He later joined Bath University. His new job involved contact with his old employer, Swindon College. The new HR Director of Swindon, on behalf of the College, caused an email about Mr McKie to be sent to Bath in damaging terms. On the facts this was "fallacious and untrue" and its preparation "sloppy and slapdash". It cost Mr McKie his job at Bath.

Although this was not a reference case the Court held that a duty of care applied. The claim should succeed because the damage sustained was foreseeable, the relationship was sufficiently proximate, the claim fair, just and reasonable and there was a causal connection between the negligence in and about the sending of the email and the damage claimed.