An interesting case in the High Court examined the situation where an ex-employer badmouths a former employee several years after employment has ended.

In McKie v Swindon College, Mr Mckie had worked for Swindon College as a contextual studies coordinator until 2002 when he left to work for Bath City College. At that time he received an excellent reference from Swindon College. In 2007 he left Bath City College to work at Bristol City College. In May 2008 he was offered and accepted a job as director of studies at the University of Bath. Two or three weeks later an email was sent by the HR manager at Swindon College (who had never met Mr McKie) to the University of Bath. It was completely damning and referred to ‘very real safeguarding concerns’ and ‘serious staff relationship problems’. As a result, Mr McKie was summarily dismissed by the University of Bath.

The High Court noted, when it considered the circumstances, that the procedure adopted at Swindon College giving rise to the sending of the email could be described as slapdash, sloppy and unfair. At trial, Mr McKie produced evidence that indicated that the contents of the email were largely fallacious.

When considering what remedy Mr McKie might have, the High Court ruled out the possibility of pursuing a defamation claim since Mr McKie would have to show express malice, which he could not prove. The same problem arose with the claim of malicious falsehood where malice needed to be shown.

The High Court stated quite clearly that the law relating to the giving of references was not relevant since this was not a reference. In this case, the court applied the rule in Hedley Byrne v Heller giving rise to the claim of negligent misstatement. Applying the guidelines in the case of Caparo Industries plc v Dickman, the court considered the three stage test:

  • What damage did Mr McKie suffer? He lost his job which gave rise to significant loss of earnings.
  • Proximity or neighbourhood. Whilst six years had elapsed since Mr McKie was employed by Swindon College, Swindon College itself brought about the relevant degree of proximity by its actions. The mere fact a number of years had gone by was not sufficient to break proximity.
  • Was it fair, just and reasonable to impose a duty of care? In the circumstances, it was.

This case is interesting because it emphasises a duty of care to be honest and fair when making statements about former members of staff even when this is not in the context of the giving of a reference and when a substantial period of time has elapsed after the employment relationship has ended. Ex employers need to be careful about making damaging statements about former staff even outside the context of reference giving.