Legal opinion: Liability for statements about former employees

It has long been accepted that an employer will owe a duty of care in respect of a reference given about a current or former employee, both to the employee and to the recipient of the reference. The recent case of McKie v Swindon College, however, breaks new ground in that for the first time an employer has been held liable for statements made about a former employee that were not part of a reference.

Fallacious comments

Robert McKie worked at Swindon College between 1995 and 2002. When he left, he was given an excellent reference. By 2008 he was working at the University of Bath and part of his job involved liaising with and visiting Swindon College. A few weeks into this job, Swindon College sent an email to Bath University stating that Mr McKie could not be accepted on their premises, citing “safeguarding concerns” and “staff relationship problems” that had arisen during his time there and implying that he could have faced disciplinary action at the time he had left Swindon College’s employment. On the basis of this email, Bath University dismissed Mr McKie.

Key points

  • The recent case of McKie v Swindon College involved an organisation being found liable in negligence for comments made about a former employee.
  • This highlights risks even where comments are not made in a reference and concern an employee who left some time ago.
  • Care should be taken by any organisation considering making comments about a former employee.

The High Court held that the allegations in the email were “largely fallacious and untrue” and that Swindon College had been negligent in sending it, in particular by not adopting a formal procedure. Mr McKie was therefore awarded damages against Swindon College.

The impact for HR

So what impact will this case have on HR professionals, and what can be done to reduce the risk of falling foul of this new extension of the law?

The first, obvious, point is to be very careful when making statements about former employees. Although McKie involved an email, there is no reason why the principle could not be extended to telephone calls, or even casual conversations at, say, a business lunch. If the comment causes the subject loss which was eminently foreseeable, for example the loss of a job or failure to get a job that would otherwise have been obtained, then the former employer making the comment could be liable.

For the former employer to owe a duty of care there must be some degree of proximity. In this case, although six years had elapsed since the individual had been employed by Swindon College, the former employer had brought about the relevant degree of proximity by relying on the personnel records and the knowledge of the individual with whom they were dealing.

What could the former employer have done? Helpfully, Judge Denyer QC did consider the steps that he would have expected an organisation in this position to take, including, at the very least, “a formal meeting, a formal discussion, a formal examination of the personnel record, a formal recording of the processes that led to the taking of the decision”. The procedure adopted in sending any such email or having such a discussion should at least comply with the minimum standards of fairness.

What of the liability of the current employer for dismissing on the grounds of damning information received from a previous employer? Issues around unfair dismissal did not arise in this case as Mr McKie did not have the necessary one year’s service. However, the judge made it clear that Mr McKie should have been given the opportunity to address the allegations and gather evidence, and Bath University should have inquired further. The implication is that, as part of a disciplinary investigation, the new employer should consider the substance of the information received from the previous employer, rather than relying blindly on it. Perhaps this is not so surprising in itself, but highlights that, should information come to light, which had the employer had known at the time of hiring would have prevented it hiring the employee in the first place, this is no reason to forego a fair procedure (at least for employees with qualifying service).

McKie is a timely reminder to both past and present employers to be very careful when making comments about former employees or taking action based on such comments.

Rachel Sutton, associate, Norton Rose LLP

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