Making reference to the past
May 19, 2011
Many employers nowadays are very cautious about giving references for former employees. It is common for references to be limited to only the most basic information such as the employee’s start date, end date, and job title. But a recent case has shown that employers need to be wary of any comments made about a former employee, even if they are not specifically in the form of a reference, and even if the comments are made some time after the employee has left.
The case was McKie v Swindon College. Mr McKie had worked for Swindon College from 1995 to 2002. When he left, he was given a glowing reference. He then had several other jobs before he joined the University of Bath in 2008, where he became Director of Studies.
As part of Mr McKie’s duties with the University of Bath he was required to attend Swindon College’s site. However, on 5 June 2008 an email was sent from Swindon College to the University of Bath stating that the College did not want Mr McKie on their site, as they had serious concerns about him, including safeguarding issues relating to students, and staff relationship problems.
As a result of this email, the University of Bath dismissed Mr McKie. As he had only been with them for a few months, he did not have statutory protection against unfair dismissal.
Mr McKie brought a claim against Swindon College alleging that their comments amounted to “negligent misstatement.” This is where one party owes a duty of care to another, and they breach that duty by making a careless, false statement, causing the other person to suffer loss.
The court found that the comments made about Mr McKie were “largely fallacious and untrue.” The person at Swindon College who had written the email had never met Mr McKie and was “slapdash, sloppy and failed to comply with any sort of minimum standards of fairness.”
Therefore, Swindon College were liable to compensate Mr McKie for the loss suffered as a result of the email. The figures will be assessed at a later stage but will be based on his lost earnings and the effect on his future career.
This case is a reminder to employers of the need to be wary when communicating about former employees – not just in a reference situation, but afterwards too. It is very easy for employers to be caught off guard, particularly in telephone conversations. For some organisations it may be a good idea to have a policy that any references or statements about former employees have to be reviewed by HR or a nominated manager.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243) 836840 or enquiries@pureemploymentlaw.co.uk)