Employers' duty of care when referring to former employees in communications with third parties The recent English case of McRobert McKie v Swindon College [2011] EWHC 469 demonstrates that an employer owes a duty of care to a former employee when referring to him/her in communications with a third party. Damages will be awarded to the former employee if negligent misstatement is made by the employer.   

Facts

The University of Bath hired Mr. Robert McKie ("McKie") and as part of his job duties, he was required to work closely with a number of further education colleges, one of which included Swindon College, McKie's former employer nearly six years beforehand.

Shortly after McKie started his employment at the University of Bath, he was summarily dismissed as a result of an email sent to the University of Bath from Swindon College. The email states: “Further to our telephone conversation 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.”

The Law

In Spring v Guardian Assurance [1994] 2 A.C. 296, the House of Lords held that an employer owes an employee a duty of care when providing a personal reference to a third party. However, since the present case was not a reference situation, the Court could not apply the decision in Spring v Guardian Assurance [1994] 2 A.C. 296.

In determining whether a duty of care is owed, the Court acknowledged that the law should develop novel categories of negligence incrementally and by analogy with established categories. The Court applied the three stage test in Caparo Industries Plc v Dickman & Ors [1990] 2 AC 605 which provides that:- 

"in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of "proximity" or "neighbourhood" and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other."

Decision

The Court held that the damage suffered by McKie was eminently foreseeable and that there was a proximate relationship between the parties. In particular, the Court held that although one could not imply continuing contractual duties from nearly six years ago, the fact that Swindon College knew with whom they were dealing, purported to rely upon historic evidence as to their dealings with McKie and chose to communicate that information to a third party brought about the necessary degree of proximity. The Court also held that it was fair, just and reasonable to impose a duty of care on Swindon College. The Court therefore held in favour of McKie on the question of liability.   

Practical Implications

Employers should be aware of their communications with third parties when referring to former employees, in particular, employers should ensure that:-

  1. proper employment records are kept and that the facts stated in those employment records are true and accurate, and are carefully documented;
  2. staff members are aware of the risk of referring to former employees when communicating with third parties and that if they make any references to former employees, they should make it clear that they do not represent the views of the employer; and
  3. a system is put in place whereby all communications with third parties with references to former employees are checked to ensure that they are true and accurate.