An employer was liable to a former employee when it negligently made false statements to the employee's current employer that were likely to cause damage to the Claimant.

Key facts

The Claimant had recently started a job at the University of Bath as a director of studies, a role requiring him to liaise with and visit Swindon College, his former employer and the Defendant. Shortly after the Claimant's employment commenced the University of Bath received an email from the Defendant's Human Resources Manager stating that the Defendant would be unable to accept the Claimant on its premises. The email stated that the Defendant had concerns over the safeguarding of its students and that there had been serious staff relationship problems during the Claimant's employment. The email was sent several years after the Claimant left the Defendant's employment and was not a reference. As a result of the email the Claimant was dismissed.

The decision

The Claimant brought a claim for negligent misstatement against the Defendant. At the hearing the Claimant produced strong witness evidence which persuaded the Court that the contents of the email were untrue.

The Claimant argued that this was a reference situation (it being established law that an employer providing a reference owes the employee in question a duty to take reasonable care in its preparation) but the Court disagreed. The Court did find, however, that it was fair, just and reasonable to impose a duty of care on the Defendant. The damage the Claimant suffered was "eminently forseeable" and the sending of the email brought about the requisite degree of proximity between the Claimant and the Defendant, despite six years having elapsed since the Claimant had been employed by the Defendant. The duty of care in negligent misstatement claims is usually owed to the recipient, rather than the subject, of the information. In this case, however, the Court held that the Defendant owed the Claimant a duty of care in respect of the email and that it was liable to him.

Whilst the Court felt that the University of Bath had acted unfairly in dismissing the Claimant without further enquiries, the Claimant had less than one year's service and therefore could not claim unfair dismissal.

What this means for employers

Whilst it is already established that an employer owes a duty to take reasonable care when preparing a reference for a former employee, this case imposes a similar duty for statements made other than in references. Most employers already have guidance and procedures in place to ensure that references are appropriate and this should be extended to cover all communications regarding former employees.

McKie v Swindon College [2011] EWHC 469 (QB)