Claim based on 'slapdash' email

In McKie v Swindon College the claimant had worked for the respondent college until 2002. He received a good reference when he left. In 2008, he started work at Bath University. His new job involved contact with his old workplace. The new HR Director at Swindon College, relying on information given to him by others, sent a damaging email about him to his new employer, suggesting that he had problems with students and other staff. On the evidence, these statements were completely unjustified.  However, unsurprisingly, on the basis of that email he was dismissed by his new employer before he had become eligible to claim unfair dismissal.

He made a claim against his old employer alleging that, even though it was not providing a reference as such, a legal duty of care applied and that duty had been breached. The High Court judge agreed and allowed him to pursue a claim for damages for his lost earnings from his old employer.

Points to note -

  • It is well established that an employee may make such a claim if a reference from a former employer is not fair and they suffer loss as a result. The case of McKie extends this principle to other statements made by a former employer which need not be references as such.
  • The judge confirmed that, in making such statements (whether in a formal reference or not), an employer must follow the principles of fairness, diligence, proper enquiry and natural justice.
  • Reference givers should remember that, as well as owing a duty of care to the person who is the subject of the reference, they also owe a duty of care to the recipient so must perform a balancing exercise between them.
  • All employers should beware the implications of sending a careless email – particularly where it may lead directly to an individual being dismissed from his/her employment.