In an important recent decision, the High Court has decided an employer was liable to its former employee for negligent misstatement when passing on information about him, via e-mail, to a subsequent employer. The information was not given as part of any reference process.

Mr McKie worked for Swindon College from 1995 and 2002, when he left to work for Bath City College. Swindon College had given him an excellent reference. Mr McKie moved to Bristol City College in 2007 and subsequently to the University of Bath in May 2008. In June 2008, the HR director at Swindon College, sent an e-mail to the University of Bath, stating that the college would not allow Mr McKie on to its premises because it had safeguarding concerns in relation to its students and there had been serious staff relationship problems during Mr McKie's time there, adding that Mr McKie had left the college before any formal action could be taken. The contents of that e-mail resulted in Mr McKie's summary dismissal by the University of Bath, prompting Mr McKie to claim damages against Swindon College for negligent misstatement.

The evidence presented to the court suggested that the contents of the e-mail were largely untrue. Further, the author of the e-mail, Mr Rowe, had no personal knowledge of Mr McKie as they had not worked together. Mr Rowe was wrong to dismiss the contents of Mr McKie's personnel file which recorded promotions and indicated no complaints, and since he had accepted that his comments in the e-mail would have an impact on Mr McKie's employment situation with the University of Bath, a formal process should have been followed before sending the e-mail.

It is a well established legal principle that where a 'special relationship' exists, a person owes a duty of care not to make a negligent misstatement to another who may reasonably be expected to rely on it to his or her detriment. The key question to be determined therefore was whether the college owed any duty to Mr McKie in relation to the information contained in the e-mail. While the court rejected the argument that a duty of care arose because the e-mail was akin to a reference, it was nevertheless held that the relationship between Mr McKie and the college was sufficiently proximate to give rise to a duty of care, and that in the circumstances, it was fair, just and reasonable to impose such a duty. McKie’s claim was argued on the basis that the falseness of the content of the e-mail, and the lack of any verification of the information, constituted a breach of the college’s duty of care to him. Accordingly the court held that Mr McKie had suffered financial loss in losing his job at the university, which was ‘eminently foreseeable’ and had a causal connection to the contents of the e-mail.