High Court holds ex-employer liable for negligent misstatement due to email sent to new employer 6 years after employee had left.

Mr McKie had been dismissed by Bath University shortly after it received an email from his former employer, Swindon College, stating that it “had very real safeguarding concerns for our students and there were serious staff relationship problems during his employment”. The college had sent the email not in response to a reference request but rather of its own volition, following a visit to the college by Mr McKie in his new role for Bath University.

The court found that the contents of the email were “largely fallacious and untrue” and that Mr McKie had suffered financial loss as a result. However, he noted that there was no case law which provided authority for a finding that the college had breached a duty of care owed to Mr McKie in the circumstances (i.e. a non-reference situation).  

Notwithstanding the lack of previous authority, the court held that the college did in fact owe a duty of care to Mr McKie. Identifying this as a case of “negligent misstatement”, the court was satisfied that the test laid down in the leading case of Caparo v Dickman had been satisfied.  

  • Foreseeability: it was reasonably foreseeable that the college’s conduct in sending its email would cause loss to Mr McKie;
  • Proximity: although it had been six years since Mr McKie left Swindon College, the college had brought about the necessary degree of proximity by relying on information concerning Mr McKie’s employment at the college as the basis for its comments; and
  • Just and equitable: it was just and equitable in the circumstances to impose a duty of care on the college as, if no duty was imposed, Mr McKie would be left without remedy in relation to the obvious wrong he had suffered.

Implications

It has long been established, since the 1995 case of Spring v Guardian Assurance, that an employer who provides a reference owes the subject of that reference a duty of care in relation to the accuracy of its contents. This case illustrates a willingness on the part of the courts to extend that duty to cases involving non-reference situations.

Employers should take care to ensure that they have appropriate procedures in place to monitor and control comments made about former employees (whether verbal or written) in respect of all communications, and not just responses to reference requests.  

Background

Mr McKie worked for Swindon College from 1995 to November 2002. He then worked at City of Bath College until 2007, following which he moved to Bristol City College. He joined Bath University in May 2008 as director of studies. Swindon College gave him an excellent reference.

The University of Bath oversees degree courses at certain further education colleges, one of those being Swindon College. Part of Mr McKie's duties as director of studies involved liaising with and visiting the colleges. On 5 June 2008, Robert Rowe, Human Resources Manager at Swindon College, sent an e-mail to the University of Bath, stating:  

"...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."

Mr McKie was dismissed by Bath University as a result of the email. Mr McKie sued Swindon College in the tort of negligence.