Whilst some employers may have a few choice words to say about ex-employees, it is generally accepted that when providing an employee reference, "less is more". Unfortunately, in these litigious times, there is always a risk of former employees or their new masters suing on the basis of an inaccurate reference. In a potentially expensive lesson for the employer, the High Court decision of McKie v Swindon College has extended the potential liability for statements given about employees beyond the borders of 'the reference' …

Mr McKie left his post at Swindon College in 2002 with an excellent reference to take up another post elsewhere. Six years later, he was appointed to a senior role at the University of Bath. Part of McKie's new duties included liaising with and visiting his old employer, Swindon College, overseeing their degree courses. Soon after McKie's appointment, the HR Director at Swindon College sent an email to the University stating that the college would not allow McKie on to its premises. It stated that it had concerns about his potential contact with its students and that there had been serious staff relationship problems during McKie's employment at the College, adding that he had left the college before any formal action could be taken. Therefore, some pretty serious allegations.

The University of Bath summarily dismissed McKie following receipt of this information and McKie sued Swindon College for negligent misstatement. The High Court found that the information provided by the College was "fallacious and untrue", the author of the email had no personal knowledge of McKie and he had written it following comments by another colleague which were themselves found to be without justification. As a result, it flexed its judicial muscle and considered whether the College owed McKie a duty of care even though the email sent by the HR Director did not strictly constitute a 'reference'. The Court decided to extend the duty of care so that any loss sustained by McKie as a result of the comments made by the College meant that the College was liable in damages for negligent misstatement.

As you may have already suspected, expressing an opinion on an employee, particularly in writing, is likely to carry a certain degree of risk that increases exponentially if it is very negative and/or likely to result in them either not being offered the position or fired from an existing role. Even if you feel it is justified and you really want to get your feelings about an individual off your chest, please resist doing this! The advice therefore is unfortunately to keep those references bland and factual and include disclaimers to try and limit any liability arising from the information provided. In the case of employees called upon to give personal references (particularly managers and above, as they are the most likely to be called upon) try to make it clear to them that their comments must not give the impression that they represent the business' view.