McKie v Swindon College 2011 EWHC 469 QB

This case concerned whether an employer owed a former employee a duty of care in respect of much later negative comments made about him in an email as opposed to in a negligent reference.   

Mr McKie worked for Swindon College until 2002 as an art historian and then left to work for Bath City College.  Swindon College gave him an excellent reference.  He moved to the University of Bath in May 2008.  The University of Bath oversaw degree courses including at Swindon College.  In June 2008 the HR Director at Swindon College, Mr Rowe sent an email to the University of Bath stating “we would be unable to accept Mr McKie on our premises or delivering to our students, we have very real safeguarding concerns for our students and there were serious staff relationship problems during his employment…no formal action was taken because he left our employment before this was instigated.  I understand that similar issues arose at the City of Bath College.”   

As a result of this email the University of Bath dismissed Mr McKie who sued Swindon College in the tort of negligent misstatement.  The High Court upheld his claim.  The judge found that Mr McKie was well regarded and a highly respected member of staff at Swindon College.  Mr Rowe had no personal knowledge of Mr McKie as they had not worked together, so the contents of the email were unjustified.  Mr Rowe accepted that the comments in the email would have an impact on Mr McKie’s employment with the University of Bath, so Swindon should have gone through a formal process before sending the email.   

An employer who provides a reference in respect of a former employee is under a duty to take reasonable care in the preparation of that reference and will be liable to the employee in negligence if the reference is inaccurate and the employee suffers loss as a result.  

Mr McKie’s argument that this case was a reference situation was rejected but the Court held nevertheless that a duty of care arose due to foreseeability and proximity and that it was fair, just and reasonable to impose a duty of care on Swindon.  Their negligent misstatement caused Mr McKie’s dismissal.  The judge also expressed the view that the University of Bath had acted unfairly in dismissing him but Mr McKie did not have the requisite continuous service to bring a claim for unfair dismissal against the University.   

Key point:  An employer may be liable to a former employee in tort for damages for negligent misstatement when communicating with a future employer about him even where considerable time may have elapsed since he was employed. Check and recheck the facts before issuing any statement if providing information about an employee to his or her employer or prospective employer.