In the recent case of McKie v Swindon College, the High Court had to decide whether Swindon College (“the college”) owed a duty of care to Mr McKie, a former employee, in relation to negative comments made about him in an e-mail, some years after he left.

It is already established law that where an employer provides a reference for an employee, they have a duty to take reasonable care in preparing that reference. This case, however, related to comments made outside a reference, and considered whether the employer had a duty in non reference situations too.

Mr McKie left the college to take up a new post, securing an excellent reference from the college when he left. He later moved on again to take up another post at the University of Bath. That job required him, amongst other things, to carry out visits to his previous employer, the college. The HR director at the college sent a damaging e-mail about Mr McKie to the University of Bath.

The e-mail said “we would be unable to accept Rob McKie on our premises or delivering to our students... we had very real safeguarding concerns for our students and there were very 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”.

Because of that e-mail, Mr McKie lost his job at the University of Bath.

The judge expressed the view that the University of Bath had unfairly dismissed Mr McKie as it did not enquire further about the problems that the college were saying had existed. However, Mr McKie did not have the length of service needed to bring an unfair dismissal claim.

The question for the High Court was whether the college was liable to Mr McKie for negligent misstatement for the comments made about him, which it found to be careless and untrue. (On the evidence, the High Court found that Mr McKie was an “exemplary professional”; that the Head of Director had no personal knowledge of Mr McKie but had simply relied on the account of a colleague whose evidence at tribunal was found not to justify the contents of the e-mail at all; that the contents of Mr McKie’s personnel file (all positive) were not taken into account.)

The High Court had to decide whether the college owed a duty of care to Mr McKie. It found that the college did owe him a duty of care: it was reasonably foreseeable that the college’s conduct would cause him loss (that it would impact on his employment at the University of Bath); there was sufficient proximity between the two parties (there had been an employment relationship between them, and the college had chosen to make comments about Mr McKie as an employee); and it was fair, just and reasonable to impose a duty of care.

This was so even where the e-mail containing the unfavourable comments was sent six years after Mr McKie’s employment with the college had ended. Once it had been decided that a duty of care did arise, the next step for the High Court in determining whether the college was liable was to decide whether there was a causal link between the college’s negligent false statement and the loss suffered by Mr McKie, without which the college would not have been liable for damages.

That causal connection was made out and the college was found to be liable. It was not the bare statement from the college that it would not accept Mr McKie on its premises that caused University of Bath to sack him; it was the e-mail in its entirety and, in particular, the mentioning of safeguarding issues which was the cause of the University of Bath dismissing him, in circumstances where the reasons given in the e-mail did not stand up to scrutiny.

This case is a reminder to employers that care must be taken when making comments about former employees, even where the employment relationship has ended some time ago and even where the comments are not made as part of a reference.